Gratacap v. Phyfe

| New York Court of Chancery | May 5, 1846

The Chancellor.

The statute authorizes the surrogate to make an order, after the expiration of eighteen months from the time of the appointment of the administrator, that he render an account of his proceedings. And such an order may be granted upon the application of a person having a demand against the personal estate of the decedent, as creditor, legatee or next of kin, or in behalf of a minor having such claim; or it may be made by the surrogate, ex officio, without any such application. The proceedings, however, are entirely different where the order is made by the surrogate ex officio, from what they are when it is made upon an application in «behalf of a person interested as a creditor, or as a legatee, or as the next of kin of the decedent. In the first case, it may perhaps sometimes be proper for the surrogate to make an absolute order in the first instance; as it is a matter resting in the discretion of the surrogate, whether he will or will not require an account of the administration of the estate; although no person interested thinks proper to institute a suit for that purpose. And it undoubtedly is a proper exercise of such discretion for the surrogate to require such an account, ex officio, whenever in his opinion the rights of minors, who are interested in the estate as legatees or next of kin, render such an account proper. (Roberts v. Roberts, 2 Lee's Eccl. Rep. 399.) On the rendering of such an account, if it appears that the administrator has in his hands money belonging to infants, the surrogate should notify the guardians or relatives of such infants of the fact; so that the fund may be received and properly invested for the benefit of those to whom it belongs.

But in the case of an application by, or in behalf of a person, claiming to be interested in the estate as a creditor, legatee, or as the next of kin of the decedent, an absolute order to account should not be made in the first instance, and without notice of the application to the administrator. For in such cases the right of the applicant to call for an account may be questioned. The surrogate, therefore, upon the presentation of the petition for an account should direct the administrator to be cited to appear, at a specified time, and to show cause why an order that he render an account of hid proceedings should not be granted; so as to give him an opportunity to object that the affidavit of the debt of the applicant is insufficient, or that such applicant is not interested in the estate, as a legatee or as next of kin, &c. And the party cited may show, in answer to the application, that the right of the applicant to an account is barred by a release, or otherwise. (See Millington v. Sorsby, 1 Lee’s Eccl. Rep. 525.) As a general rule, however, 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 account, where .he petitioner does not pray for the payment of the debt. (See Smith v. Pryce, Idem, 569.) Even a contingent interest in .he estate is sufficient to entitle the party, having such interest, o an order that the administrator render an account.

In the present case, the account had been rendered; so that the Whole object of the petitioners had been obtained previous to the making of the order appealed from. The order dismissing the proceedings, therefore, did not deprive the appellants of any right or benefit which they could properly claim under this petition. And being altogether extrajudicial, and not founded upon any issue joined in the cause upon a matter of fact which was in a situation to be tried in this proceeding, this order will not prevent the petitioners from bringing a suit and recovering the amount of the notes, if they are not in fact usurious and void; provided such suit is brought within the time limited by law after the petitioners had notice that their claim was denied and rejected. Whether their claim is in fact barred, upon the state of facts set forth and sworn to by the respondent in his account, is a question which was not properly before the surrogate after the account of the administrator had been rendered. It ought not, therefore, to be passed upon here.

This appeal must be dismissed without costs; and without prejudice to the right of the appellants to institute such suit for the recovery of the debts claimed by them as they may be advised to bring.