182 N.Y. 270 | NY | 1905
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For twenty years this estate has been in litigation. It has been before this court on three previous appeals. (Gall v.Gall,
Upon this appeal two questions are presented for determination: (1) Is this proceeding barred by the Statute of Limitations? And (2) should the infant, Caroline Gall, have been made a party to it?
1. The appellants' reliance upon the Statute of Limitations is based on the fact that eight years and about one month elapsed between the date of the granting of letters to the administratrix, July 29th, 1890, and the date of the commencement of this proceeding, September 3rd, 1898. Her counsel invokes the rule laid down in Matter of Rogers (
When the respondent had duly presented his claim to the administratrix, he was justified in assuming that no final decree settling the latter's accounts and distributing the estate would be made without notice to him. Acting upon that assumption he began an action at law in 1893 against the administratrix for the payment of his claim. The administratrix contested that action at every step, two appeals being taken to the Appellate Division and one to this court. After the judgment therein in favor of the respondent had been affirmed by the Appellate Division on the second appeal, and pending the appeal to this court, in September, 1898, the respondent commenced this proceeding to modify the decree settling the account and distributing the estate.
The numbers of the sections of the Code of Civil Procedure which apply to this proceeding have been changed since the issuance of letters to the administratrix, but their substance remains unaltered and we will refer to them by their present numbers. Sections 2726 and 2727, so far as material, provide that a creditor of a deceased person, after the expiration of one year from the issuance of letters, may apply to the surrogate for a judicial settlement of the representative's account. The representative also had the right to so apply. Section 2722 provides that after six months have expired since the issuance of letters a creditor may petition the surrogate for a decree directing the payment of his claim. Section 2514 defines the meaning of terms used in these sections and provides: "The word `debts' includes every claim and demand, upon which a judgment for a sum of money, or directing *278 the payment of money, could be recovered in an action; and the word `creditor' includes every person having such a claim or demand. * * *"
The appellant contends that these sections of the Code afforded the respondent an ample remedy at any and all times for six years after eighteen months had expired since the issuance of letters to the administratrix; that the remedy thus provided was concurrent with the remedy at law, and that the statute which would bar one would bar the other. We do not propose to discuss that question in its general aspects, but simply as applied to the facts of this case. Here the administratrix has obtained a judicial settlement of her accounts and has distributed the estate without citing a creditor whose claim has been duly presented. As to that creditor the proceeding was a nullity. It is idle to talk about his having had an effective remedy in the Surrogate's Court. While he was trying to establish his claim in a court of competent jurisdiction where the administratrix was contesting him at every step, the administratrix was engaged in despoiling the estate of which she had obtained possession under the false representation to the surrogate that there were no creditors. The court in which the respondent prosecuted his claim was the very tribunal to which he would have been relegated by the surrogate if the latter had been ousted of jurisdiction by the opposition of the administratrix to the claim. Section 2722 expressly provides that where a representative of an estate puts in an answer questioning a claim the surrogate must dismiss the proceeding. Practically the same result would have followed if the respondent had proceeded under sections 2726 and 2727 for a general accounting. In such a proceeding the surrogate has jurisdiction to pass only upon claims that have been admitted or established upon the accounting or other proceeding in the Surrogate's Court or other court of competent jurisdiction, and where there is a dispute the creditor is driven to the common-law courts to have his claim established. (Code Civ. Pro. § 2743;Glacius v. Fogel,
Sec. 2745 provides that "where an action is pending between the executor or administrator, and a person claiming to be a creditor of the decedent; the decree must direct that a sum, sufficient to satisfy the claim, or the proportion to which it is entitled, * * * be retained in the hands of the accounting party." That section clearly has no application here, because it plainly refers only to a case in which no distribution has been made before the pendency of an action to enforce a claim is brought to the notice of the surrogate. It follows from this, we think, that the administratrix by her conduct in distributing the estate without citing the respondent in her accounting proceedings, made herself personally responsible for the amount of his claim, and that she cannot now be heard to say that the Statute of Limitations protects her from the consequences of her own wrong.
(2) The learned Appellate Division appears to have held that the infant, Caroline Gall, was not a necessary or proper party to this proceeding, on the ground that this was a contest simply between the respondent and the administratrix, in which the latter was sought to be made personally liable for the amount of the respondent's claim, because of her wrong in procuring a decree of distribution without citing him. We take a different view. This proceeding is of an equitable nature, and while the surrogate would have no right to decree restitution by the infant, of the portion of the estate paid to her (Matter ofUnderhill,
We think the special facts of this case render it proper, if not necessary, that the infant, Caroline F. Gall, should be made a party to the proceeding. The respondent had the right to proceed against the administratrix alone, but the American Surety Company, who had been made a party and was the surety upon her bond, had the right to ask that the infant, who would be vitally interested in the question of ultimate restitution and distribution, as well as in the alleged devastation of the estate, should be brought in so that the surrogate, to the extent of his jurisdiction, could pass upon and protect her rights. That is the practice which seems to have been provided in section 2727 for cases where there is a surplus of an estate distributable to creditors or to persons interested. In such cases the surrogate may at any time issue a supplemental *281 citation to the same classes of persons who are required to be cited in proceedings for a final accounting under section 2728.
There are objections by the appellants to the report of the referee, but they present questions of fact which we have no jurisdiction to review.
Since all the questions relating to the liability of the administratrix have been correctly disposed of, and the only remaining issues are such as may possibly arise when the infant is made a party, the order of the Appellate Division should not be reversed, but should be modified by directing that the proceeding be remitted to the Surrogate's Court, and when so remitted that the American Surety Company be permitted to make the infant a party, upon such conditions as to time as the Surrogate's Court may deem just; the proceeding should then be continued in so far, and so far only, as said court may deem it necessary for the proper protection of the infant's rights and interests.
As so modified the order of the Appellate Division should be affirmed, without costs to either party on this appeal.
GRAY, O'BRIEN, BARTLETT, HAIGHT and VANN, JJ., concur; CULLEN, Ch. J., not sitting.
Ordered accordingly.