98 N.Y.S. 961 | N.Y. App. Div. | 1906
Pursuant to section 2707 of the Code of Civil Procedure the petitioner, who.is the executor of the last will and testament of Bosina Stümpf, deceased, presented to. the Surrogate’s -Court a petition wherein he alleged that- the appellant Frank Stumpf had in his possession money and. .property.belonging to the estate of the said
It is the contention of the appellant that on the submission of such answer placing in issue title to the property in question it was the duty of the surrogate to dismiss the proceeding and that lie had no power to proceed with, the examination of the appellant. Section 2709 of the Code of Civil Procedure relating to tins proceeding provides that: “ On the attendance of a person to whom a citation is issued, as prescribed in this article,
These sections of the Code of Civil Procedure were materially amended in .1903, the sections, as amended being as above set forth. Whatever .construction may have been placed On them prior to such amendments, there.-isrno doubt that since the amendments .surrogates have power to examine a person proceeded against notwithstanding the interposition of an answer alleging title' to the property -in question. It was doubtless the legislative purpose in making such, amendments to enlarge the power of surrogates in a proceeding of this. kind. Formerly a surrogate was bound by an answer such as was interposed herein. But u.nder the present statute he may proceed and examine the person cited as to the facts alleged in his answer.' He may inquire into the verity of the . answer and is not boiind thereby. It is' the facts disclosed by the evidence and not the allegation of the answer which determines the proceeding. Of course, the surrogate can make no order adverse.to the person cited affecting the property in question, uhless it conclusively appears as matter of law from the evidence produced that his. claim of title is not well founded. But the purpose of the statute is to enable the surrogate to say whether the claim of title alleged in the. answefrests on a sound foundation oris a mere subterfuge-on the part of the claimant to deprive the executor or administrator of the property. or of information concerting the same. The case of Matter of McGuire (106 App. Div. 131) is not pertinent to this case. There the order appealed from directed the delivery of property without any examination, notwithstanding ati answer showing the right of the appellant to hold the property. '
It is said that this construction of the statute vests .in surrogates much inquisitorial power, and that the statute may thereby be made oppressive., This argument assumes that surrogates will not wisely exercise the discretion vested in them. That much discretionary power is given them is apparent.. When an answer is submitted “ the surrogate may then dismiss the proceeding or direct the exaniiiiation to proceed.” ' “ The" extent of the examination shall be in the discretion of the surrogate.” It is a discretion which should be wisely exercised and carefully guarded against abuse. But there are cases and circumstances where such power may properly be
■ The orders should be affirmed, with ten dollars costs and disbursements.
All concurred.
Orders affirmed, with ten dollars costs and disbursements. _
Code Civ. Proc. chap. 18, tit. 4, art. 1.— [Rep.