132 N.Y.S. 99 | N.Y. App. Div. | 1911
Lead Opinion
The German Society of the City of New York, as executor of August Lachenmeyer, deceased, appeals' from an order of the Surrogate’s Court directing it to file an account of its proceedings as such executor, the petition therefor having been made by Anna M. Reclmagel and Catherine E. F. Recknagel, as executrices of Carl L. Recknagel, deceased. The material facts are as follows: On November 4, 1893, Carl L. Recknagel recovered a judgment in the Supreme Court, New York county, against August Lachenmeyer. The former died in Kings county, State of New York, on January 3, 1900, leaving a last will and testament thereafter duly admitted to probate, whereof Anna Maria Recknagel and Catherine Elise F. Recknagel were named as executrices, and they qualified and continued as such. Lachenmeyer died at Neustadt-am-Hardt, Germany, on September 10, 1904, leaving a last will and testament, thereafter duly admitted to probate by the Surrogate’s Court, New York county, wherein the German Society of the City of New York was named as executor; it qualified as such and proceeded to administer the estate, in the course thereof commencing the publication, on or about June 16, 1905, of the notice to present claims pursuant to section 2718 of the Code of Civil Procedure, the date limited for such presentation being December 27, 1905. No claim was ever presented by the estate of Carl L. Recknagel to the executor of the Lachenmeyer estate. On August 4, 1909, the German Society made, rendered and filed its account as executor of the Lachenmeyer estate, and upon its petition a citation was issued to the persons interested in the estate as named therein to attend the settlement of the account. Neither Lachenmeyer, his estate nor the executrices thereof were named in the petition or the citation. Thereafter a decree of the Surrogate’s Court was made on February 11, 1910, settling, allowing and adjusting such account, and decreeing distribution of the balance of the estate, in accordance with which the executor paid out all the funds remaining in its hands. Of the entry of this decree no notice was ever (
In Matter of Gill (183 N. Y. 347) it was held that where an executrix had advertised for the presentation of claims against the estate of her decedent, and at the expiration of the time thereby fixed paid out to various creditors the entire estate, leaving nothing for distribution, but never obtained a decree settling her account and directing distribution, it was the absolute right of an unpaid creditor who failed to present his claim until some two years thereafter to institute a proceeding for an accounting, for as the court said: “The position assumed by the respondent on this appeal that an estate can be paid out and wound up out of court and the creditors afforded no opportunity to scrutinize the proceedings of an executrix on a final accounting, has no foundation in law or equity.” Upon a subsequent appeal in the same case mvolving the accounting pro
It follows from the cases above quoted that if an executor, having advertised for the presentation of claims, has personal knowledge of the existence of a claim against the estate of his decedent, even if it be not presented to him, and proceeds to procure a decree settling his account and decreeing distribution without citing the creditor, he does so at his peril, and must account upon the petition of such creditor. But the creditor has no such right to an accounting unless he can first affirmatively establish the knowledge of his claim by the executor. In this case the executor’s knowledge of the existence of the claim is denied, and, therefore, that issue must be determined in favor of petitioners before an accounting can be ordered. The proceeding will, therefore, be remitted to the Surrogate’s Court for such determination. It should be said, as well, that if the petitioners succeed upon such hearing, the proper procedure is that prescribed in Matter of Killan (172 N. Y. 547). There an administrator, who had distributed an estate in reliance upon a decree of the Surrogate’s Court settling his account and directing distribution of the balance of an estate among the specified next of kin of decedent, who were his cousins, was held hound to account anew to a brother of decedent who had not been cited upon the accounting. The good faith of the administrator was not attacked, hut it was held that the decree was void as to the brother, as, while the court had jurisdiction of the subject-matter of the proceeding,
The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Surrogate’s Court for action in accordance herewith.
Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.
Concurrence Opinion
(concurring):
I concur with Mr. Justice Dowling that the petitioners had no standing in court to require the executor to account without having first affirmatively, established that the executor had knowledge of the petitioners’ claim and that the proper proceeding is that suggested in the opinion of Mr. Justice Dowling. The question as to the right of a creditor to compel an executor to account who has already duly accounted before the Surrogate’s Court, had his accounts settled by judicial decree and the estate distributed under such decree, it seems to me must depend upon the good faith of the executor. The executor or administrator is authorized to advertise for claims against the estate of the deceased and if no claims are presented he is then authorized to apply to the Surrogate’s Court to have his accounts passed and the estate in his hands distributed, and, as I understand the rule, he is then protected from any subsequent accounting by creditors who have not presented their claims unless it is alleged and proved that he acted in had faith. Undoubtedly an executor or administra
Order reversed, with ten dollars costs and disbursements, and proceeding remitted to Surrogate’s Court for action in accordance with opinion.