Forsyth v. Burr

37 Barb. 540 | N.Y. Sup. Ct. | 1862

By the Court,

Miller, J.

The statute requires that executors and administrators, within a reasonable time after qualifying and after giving the proper notice, shall make an inventory of the property of the deceased. (2 R. S. 82, § 2.) Upon the inventory being completed a copy of it must be returned to the surrogate, within three months after the date of the letters issued by him. (Id. 84, § 15.) The inventory must be verified by the oath of the executor or administrator. (Id. 84, 85, § 16.) If the executor or administrator neglect or refuse to return such inventory within the time required by law, the surrogate is authorized to issue a summons requiring the executor -or administrator to appear before him and return an inventory according to law, or show cause why an attachment should not be issued against him. (Id. 85, § 17.) If after the personal service of such summons such executor or administrator shall not by the day appointed return such inventory on oath, or obtain further time to do so, the surrogate shall issue an attachment against him, and commit the executor or administrator to the common jail of the county, there to remain until he shall return such inventory. (Id. § 18.) Any person interested in the personal property of the deceased may compel the executor or administrator to return an inventory. (Dayton’s Surrogate, 3d ed. 281, 282., Thomson v. Thomson, 1 Brad. 24, 27, 28.) The executor or administrator may appear on" the return day and show cause against the order, and contest the petitioner’s allegation of interest, and if he show that the petitioner has' no interest, or that the demand of an inventory be vexatious, the petition will be dismissed. (Dayton’s Surrogate, 281, 2.) But when the executor or administrator contests the claim, the surrogate, if the petition be properly verified, will require the inventory and account without trying the issues between the parties. (1 Brad. 27, 28. Williams on Ex’rs, 837.) I do not think that there was in this case sufficient cause shown for the neglect of the administratrix. Although the claim was disputed, yet there was not evidence to prove it was entirely invalid, and that the demand was vexatious. The cases cited by the respondent do not sustain the doctrine contended for. In Boon’s case, (Sir T. Raym. 470,) the plaintiff had paid two installments of the legacy and tendered the third ; thus rendering the application entirely unnecessary and vexatious. In Leighton v. Leighton (2 Cas. Temp. Lee, 356) the decision was put upon the ground that there were no effects to inventory, and it would be a useless expense. In Fleet v. Holmes (Id. 101) the legacy was one thousand piounds, and the executrix had tendered one thousand pounds principal and sixty pounds for interest. Sir George Lee, in delivering the opinion of the court, says : “ I refused to decree an inventory because I thought it useless, because the executrix would certainly be bound by her confession of as- • sets and of having made interest, in her answer to the libel for this legacy, and therefore Fleet was already sufficiently founded to have the judgment of the court whether she ought to pay interest or not.” The executrix was here ready and willing to pay, and had tendered all but some interest, and there was no question as to responsibility raised. It will be seen that neither of the cases was like the one now considered. In two of them the executrix had tendered and was ready to pay. In one, there were no assets. In neither was the principal debt disputed. It was no answer to the application that the administratrix offered to deposit the money. She did not actually deposit it, and I do not understand that the applicant was bound to enter into negotiations with her for that purpose. The averment of ability to pay is not a sufficient answer to the application. And in the cases cited it appeared that there was not only ability but willingness to pay. I think no sufficient cause was shown for neglect to file the inventory, The applicant, as a creditor, had a right to require it. As a general rule, if a creditor swears positively to a debt due to him from the decedent, he will be entitled to an order for an inventory and an account of the estate. And the surrogate will not proceed to try the validity of the debt, or to inquire as to the amount thereof upon a mere application for an inventory. (Smith v. Pryce, 1 Lee’s Ecc. Rep. 525.) The allegation that the application is vexatious and to gratify the curiosity of the petitioner is denied, and cannot be available when there is a claim made in good faith, even though the demand is disputed. An application to compel an executor or administrator to file an inventory, by a party in -interest, is rarely if ever refused, if made within a reasonable time. And in this case I see no good reason for the decision of the surrogate. The party interested had a right by statute to. know the condition of the decedent’s property, and the surrogate erred in refusing to order the inventory to be filed.

[Albany General Term, May 5, 1862.

The order should be reversed, with costs to be paid by the estate.

Bogeboom, Peckham and Miller, Justices.]