Hoyt v. Bonnett

58 Barb. 529 | N.Y. Sup. Ct. | 1871

By the Court, Cardozo, J.

The appellants, in their proceeding to review the action of the surrogate, have themselves characterized their claim against the estate as a debt due and owing. It is most likely that they were right in so regarding it, though it is not consistent with the ground upon which they ask us to reverse the surrogate’s decision. But I do not think it necessary to determine that point. The statute does not limit the claims to be presented to the executors, to such as are due. Whether due or not, if there is an intention to make a claim against the estate, notice of that claim should be presented; and if it be not due, the 74th. section of the statute (2 R. S. 96) points out the course to be pursued, upon the accounting.

It is objected that the notice to present claims was insufficient ; and the case of Murray v. Smith, (9 Bosw. 689,) a special term decision, by Justice Robertson, is relied upon. We think that decision cannot be sustained. The executors may select a place as their place of business or residence, so far as their relation to the estate is concerned, and the designation, in the notice, of a place where the claims shall be presented, makes that the residence or place of business of the executors, for that purpose, within the meaning and object of the statute.

The next question is, the claim having in fact been presented to the executors, did they reject it? I think they did. They declined to pay the claim, which was certainly a rejection or dispute of it. Their declination was not contingent. It is true, they asked for vouchers; but although they did so, they at the same time absolutely declined to pay. If, after that, the claimants wanted any further action, any reconsideration of the subject by the executors, they should have re-opened the matter by some communication, and if the executors had then discussed the matter, it might be that the rejection could not be considered as final. (Barsalou v. Wright, 4 Bradf. 164.) But nothing of that kind occurred.. The executors did not, by stating that they would be “greatly obliged” for bill of particulars, &c., qualify their refusal to pay. They made no promise, and gave no intimation that their action would be altered by such a bill, even if one were sent. But none was sent. And giving to the notice of rejection the most liberal construction which the appellants can claim, its meaning could not have been more favorable to their view than this: “We reject your claim. If you want us to reconsider this, send further information.’-’ When thus notified, the appellants in effect say, we have no further information to give; and as the notice fully apprised them that, as things then stood, the claim was rejected, I think the surrogate was right, and that his decree should be affirmed.

[First Department, General Term, at New York, February 7, 1871.

Decree affirmed, with costs.

Cardozo and Geo. G. Barnard, Justices.]