82 A.D. 186 | N.Y. App. Div. | 1903
The petitioners, as administrators of the estate of George F. Gilman, presented to the Surrogate’s Court a petition alleging their appointment as administrators, etc., of George F. Gilman, deceased, and the issuance of letters of administration on the 11th of March, 1901, by the Surrogate’s Court of the county of New York to which jurisdiction the premises rightfully belonged; that the deceased left him surviving no widow or children, his next of kin being brothers and sisters and descendants of brothers and sisters, one of such next of kin having been adjudged an
Upon this petition a citation was issued by the surrogate requiring all persons interested in the estate to show cause why the application should not be granted. No objection was presented, except by
Upon .this appeal the only question before his is whether, the surrogate had jurisdiction to. grant this application, for it is clear, both from the order entered and his opinion, that he did not ■ examine into the merits of the proposed compromise. The peculiar character of the property involved in- this dispute between the. administrators and the person in possession of the business of the decedent, claiming to hold it as surviving partner,' is such that a simple winding up of the business might be disastrous to those interested in the estate. The value of the business is largely enhanced by its continuance under the management and control of the person to whom the decedent had committed the management of the business during his lifetime. Hartford has sustained' his right to the possession of the business and the assets as - surviving partner to the extent of procuring an injunction restraining the petitioners from interfering with the business, and under, this injunction he was in control of the. business as surviving partner. If there was a partnership the interest of the estate, consisted solely
By section 2719 of the Code of Civil Procedure the surrogate is given power to “ authorize the executor or administrator to compromise or compound a debt or claim, on application, and for good and sufficient cause shown.” This section is part of article 1, title 4 of chapter 18 of the Code, which is entitled, “ Aid, supervision and control of an executor or administrator.” The question here is whether or not the surrogate had power under the provision of this section to authorize the administrators to settle the claim of the estate against Hartford in the manner proposed by this agreement to which all of those interested in the estate have assented, except one creditor whose claim is not established. ' The application to the surrogate was to “compromise or compound a debt or claim” against Hartford by accepting stock in a foreign corporation to which all of the property which is in dispute is to be transferred, the stock to be issued for a transfer of the decedent’s interest in the property to be preferred stock and entitled to dividends before the common stock issued to Hartford now in possession of the property and who claims to be the owner of one-half thereof as a surviving partner shall receive a dividend. It seems to me that such a settlement is a compromise or compound of a claim within this section of the Code. An entirely different question would be presented if the petitioners had obtained absolute possession of this property and proposed to sell it to a corporation. The surrogate would clearly, under this provision of the Code, have no power to authorize such a sale, whether it was all or a part of the decedent’s estate. There might
O’Brien, J., concurred; Van Brunt, P. J., Patterson and Hatch, JJ., concurred in result.
Order reversed and matter sent back to surrogate, with costs of appeal to abide his final determination.