15 Abb. N. Cas. 187 | N.Y. Sur. Ct. | 1885
The temporary administrator of this estate, who has been- acting as such since December 20, 1888, asks for an order authorizing and directing him to withdraw from the funds deposited by him in the Union Trust Company, an amount sufficient to pay certain debts and expenses of administration which are specified in his application and in the several schedules thereto attached. In obedience to the directions of the order, by which he was granted letters, notice of this application has been given to the proctors for parties contesting the probate of the paper propounded as this decedent’s will. They oppose the payment of several items of alleged indebtedness which the petitioner asks leave to pay, and have indicated the nature of their opposition by filing written objections.
The Code makes no provision for the trial of such issues as are thus sought to be raised. It provides
I cannot believe that this apparent discrimination between things required to be proved and things not required, is accidental, and without real and positive significance. Is not this, indeed, the scheme of the fifth article, of which section 2624 forms a part—that a temporary administrator must furnish security for the due performance of his trust, precisely as if he were administrator in chief; that he may then exercise, under certain prescribed limitations, the same authority that could be exercised, by such an administrator ; that his authority to pay debts is subject to this restraint and this alone, that it cannot be made effective until he has demonstrated-to the satisfaction of the surrogate that the value of the total assets left by the decedent is greater than the amount of all his debts; and that when this has been established he will be permitted, as he would, of course, be permitted, were he administrator in chief, to use his own discretion respecting payment of persons claiming to be creditors, subject to such objections as any persons interested may see fit to interpose upon his subsequent accounting?
I am disposed to think that this interpretation of the statute is a true, one, and in any event I am very
An order may be entered granting the prayer of his application, with the modification above indicated, and with, the reservation of the right of these contestants to dispute, upon the accounting, any items to which they now object (Stokes v. Dale, 1 Dem. 260).