Duncan v. Guest

| N.Y. Sur. Ct. | Dec 15, 1881

The Surrogate.

An opportunity is now offered for the proper consideration of the point discussed, which was not presented when the decree complained of was made.

I think it quite clear that the creditors of a distributee are not proper parties before me on an accounting. Only creditors of the decedent, or those claiming to be such, can appear or be heard. Section 2743 of the Code enumerates the classes of persons among whom can be decreed the distribution of the funds of the estate, and creditors of a distributee are not named among them. Section 2745 declares in what cases the decree must direct a sum sufficient to meet a claim against the decedent to be retained by the executor or administrator.

As the statute now authorizes the court to decree payment to an assignee of a legatee, next of kin, etc., if the assignor wei’e to appear on such an accounting, and dispute the validity of the assignment, doubtless it would be the duty of the court to hear and determine the controversy, in order to decree payment to the person entitled thereto, but a mere creditor has no such right. The application to amend the decree in the manner sought must be granted.

Ordered accordingly.