1 Dem. Sur. 45 | N.Y. Sur. Ct. | 1882
In the year 1856, Margaret Greene, as executrix of her deceased husband David, commenced against this decedent, who was then living, an action for an accounting. An answer was interposed, and the case sent to a referee to hear and determine. During the pendency of the proceedings, the referee died, and another was appointed in his place. The death of the plaintiff followed in 1863, and that of the defendant in 1877. In 1878, John Greene, a son of David, was granted letters of administration, with the will annexed, upon his father’s estate. He thereupon took such steps to revive the original action as resulted in sending it again before the referee, where it is still pending. Meantime, the executors of Theodore Martine had presented
It is insisted that these exceptions should be ignored, and that he should be denied a hearing upon the question of confirming the report. In one of the schedules which forms a part of the account filed by the executors, mention is made of this action, now pending between themselves and Greene, as an action arising from a disputed demand against the estate of their testator. It is urged against them, and with some show of reason, that, by thus recognizing the existence of Greene’s claim, the executors have waived their right to object that he has no standing as a creditor in this proceeding. Aside however from any consideration of waiver, has he not a right to be treated as a party to the accounting? Section 2731 of the Code declares that ;<a creditor, although not cited, shall be entitled to appear upon the hearing, and thus make himself a party.” It is urged, in behalf of the executors, that, before according to a person not conceded to be a creditor, any rights as such, it should be first ascertained and determined that his demand is well founded; that he not only claims to be, but that he is, a
Those who care to examine, in chronological order, the various decisions pertinent to the subject may be interested in the following list: 1836, Payne v. Matthews (6 Paige, 19); 1838, Gardner v. Gardner (7 Paige, 115); 1844, Fitzpatrick v. Brady (6 Hill, 581); 1844, James Kent’s estate (Dayton on Surrogates, 2d ed., 507); 1846, In re Jones (1 Redf., 263); 1847, Kidd v. Chapman (2 Barb. Ch., 423); 1849, Magee v. Vedder (6 Barb., 352); 1850, Campbell v.
The provisions of the Revised Statutes, to which the foregoing cases refer, remained unchanged until the adoption of the present Code of Civil Procedure. They were as follows: “Whenever an account shall be rendered and finally settled .... if it shall appear to the Surrogate that any part of the estate remains to be paid or distributed, he shall make a decree for the payment and distribution of what shall so remain to and amongst the creditors, legatees, widow and next of kin of the deceased, according to their respective rights; and in such decree shall settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share; to whom the same shall be payable, and the sum to be paid to each person.”
The controversy which this section provoked seems to have culminated in the determination that (so far at
1st. The delegation to Surrogates of authority to decree, upon the final accounting of an executor or administrator, a distribution to claimants “according to their respective rights,” gave them no power to ascertain and determine what those rights were, except in cases where they were conceded to exist.
2d. The imposition upon the Surrogate of the duty “to settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share,” empowered him to settle and determine such questions, and such only as were not a matter of dispute between the parties, or., in simpler phrase, such questions as there was no question about.
I think that this interpretation of the statute must always seem a little startling, when one’s attention is first called to it, but the weight of authority is so overwhelmingly in its favor, that it would be idle to gainsay its correctness. And, besides, the theory which it establishes respecting the proper metes and bounds of a Surrogate’s authority has apparently been incorporated by the Legislature into the present Code of Civil Procedure. Mr. Commissioner Throop intimates, in a note to his edition of the Code, that sections 2142 and 2143 have been so carefully phrased as to put forever at rest the questions which have hitherto vexed the courts, touching the jurisdiction of the Surrogate over disputed claims. The latter section provides for the judicial settlement, upon final accounting, of only those debts, claims and distributive shares, ‘ ‘whose validity is not disputed or has been established.”
In view of the decisions which have been cited, and of
One other question remains to be considered. It is suggested that, by failing to present his claim to the executor for acceptance or rejection, Mr. Greene has lost his right to be treated as a party to these proceedings. Such is not the case. Neither the provisions of the Revised Statutes nor those of the Code of Civil Procedure, by which the former have to some extent been superseded, make it the duty of a creditor to submit his claim to the executor or administrator in pursuance of the notice requiring presentation of demands against his decedent’s estate. If a creditor chooses to present his claim and it
I hold, therefore, that John Greene, as administrator of his father’s estate, must be deemed a party to these proceedings, and that his objections to the account are entitled to be considered. As to what provision, if any, should be made-for his protection in the decree of distribution, a question may hereafter arise, but it need not now be determined.
Ordered accordingly.