In re Kinn

122 N.Y.S. 26 | N.Y. App. Div. | 1910

Woodward, J.:

A concise statement of the facts is about all that is necessary to a determination of this case, and the learned surrogate appears to have had them well in mind. Anna Kinn died in the borough of Brooklyn on or about the 22d day of October, 1905, leaving a last will and testament, which was subsequently proved before the surrogate of the county of Kings on or about the 12th day of March, 1907, letters testamentary being issued to Peter Kinn, sole executor, on that date, and he thereupon entered Upon the discharge of his duties, and has continued in the position down to.the present time. At the time of her death Anna Kinn- was seized of certain real estate, known as Kos. 8 and 10 Judge street, Brooklyn, of the value of about $4,500. The inventory of the goods, chattels and credits of the deceased, made and filed in the maimer prescribed by law, showed an appraised value of $145.54, and the executor has realized the sum of $51.54 on such personal property. The executor duly advertised for claims, which resulted in demands upon him for a sum aggregating $3,424.46, a portion of this sum being made up of certain promissory notes made or indorsed by the decedent, which the executor refused to pay, but entered into a stipulation, under the- provisions of section 2718 of the Code'of Civil Procedure, to have the same sent-to a referee to hear, try and determine. This proceeding resulted in judgments in favor of the several claimants for the full amount of their claims, so that, with the claims previously allowed by the. executor, the decedent owed debts aggregating nearly . $3,500, with personal property of the valué of about $150.

Under these circumstances Peter Kirin,, the sole executor, petitioned: the Surrogate’s Court for authority to sell the real estate of deceased for the payment of her debts, and a citation and supplemental -citation addressed to the heirs, devisees, grantees, mortgagees, creditors and all other persons,interested in the real estate,.duly.issued out of .said--court,'directing.them and each of them to show cause on the 5th day of April, 1909, why a decree should not be made directing the disposition of the said- real estate for the payment of the debts arid funeral expenses of the decedent. •• Later an amended petition, varying in no material respect, was tiled, and on or about the 10th day of April,' 1909, the appellant William Auer tiled an answer to the petition in which, without, denying specifically any of the allegations of the petition; he alleges several matters not material to -the determination of the - matters. involved, and alleged on information and belief that “ the executor has collected money for the estate herein and has neglected to take pos-..' session of. personal property belonging to tlie'estate,” and prays for an accounting. . None of the other interested parties appeared to contest the proceeding, and the appellant called no witnesses and offered no evidence in support of his allegations, of misconduct on the' part of the executor, nor did he attempt to disprove any of the allegations of the petition. '

William Auer’s interest in this proceeding comes from the fact that on the 22d day of April, 190.7, less than three years from-- the date of the issuing of - letters testaméntary, he took a conveyance of the. premises 8 Judge street from Nicholas H. Kinn, devisee of Anna Kinn, deceased, and it is alleged, and not disputed that he gave a valuable consideration therefor, and has since remained in possession- of the same. Taking the premises under these circumstances, and without making any inquiry so. far as appears to determine whether the personal property was sufficient-to pay the debts, the appellant is not an innocent . purchaser; he must take notice that the law gives a quasi-lien upon the real estate of a deceased person in behalf of creditors during a period of three years, and during that time it cannot be aliened by his heirs or devisees in such a manner as to defeat the claims of creditors thereon. (Olyphant v. Phyfe, 48 App. Div. 1, 5, and authority there cited.) While it is no doubt true that the appellant would have a right, under a proper answer, to question the claims of creditors allowed by the executor, his contention that the proceedings before the referee upon the disputed claims were in anywise irregular is without any foundation in law, while the concessions of counsel upon the hearing upon the petition conclusively show that there were valid claims largely in excess of the personal property, and this of itself is sufficient to warrant the decree of sale, provided the proceedings have been in conformity with the provisions of the statute, as does not seem to be open to question in this case. (Code Civ. Proc. § 2756.) If there is a surplus from the sale of the real property, or if any funds come into the hands of the executor which might properly have been used in the payment of debts and funeral expenses, the appellant may assert his rights in a proper action (Code Civ. Proc. § 2801), but we fail to discover upon this appeal any reason for setting aside the decree of the surrogate. •

The decree appealed from should be affirmed, with costs.

Jerks, Burr, Thomas and Rich, JJ., concurred.

Decree of the Surrogate’s Court of Kings county affirmed, with costs.