161 N.E. 471 | NY | 1928
Orin Akin died on February 19th, 1927. Until February 15th, 1927, he maintained a deposit account in the National City Bank of Troy. On February 15th, 1927, Nette Akin, a son of the decedent, presented at the bank a draft or order, apparently signed by the decedent, for the payment of the entire fund on deposit. The bank honored the draft and the moneys were thereupon deposited in a new account which was opened by Nette Akin in his own name.
After the death of Orin Akin, an administrator was appointed who promptly began proceedings in accordance with section 205 of the Surrogate's Court Act to discover property withheld. The petition alleged that the moneys of the deposit account are "in the possession or under the control or within the knowledge or information of one Nette Akin." An order for an inquiry was made by the surrogate, and Nette Akin was directed to attend the inquiry "and be examined according to the prayer of the said Petition and show cause why he should not deliver the property set forth in the said Petition, if it is in his control, to the said Administrator."
Section 206 of the Surrogate's Court Act provides: "Trial and decree. If the person directed to appear submits an answer denying any knowledge concerning, or possession of, any property which belonged to the decedent, or any property of the estate, or shall make default in answer, he shall be sworn to answer truly all questions put to him touching the inquiry prayed for in the petition. If it appears that the petitioner is entitled to the possession of the property, the decree shall direct delivery thereof to him, or if the estate property *204 shall have been diverted or disposed of the decree may direct payment of the proceeds or value of such property or may impress a trust upon said proceeds or make any determination which a court of equity might decree in following trust property or funds. If such answer alleges title to or the right to possession of any property involved in the inquiry, the issue raised by such answer shall be heard and determined and a decree made accordingly."
Nette Akin made default in answer. He appeared at the inquiry with counsel and was examined under oath concerning the fund which had been deposited in the bank by the decedent. He claimed that the decedent had made a gift to him of the moneys deposited. The administrator disputed the claim. Witnesses were produced by each side and examined by opposing counsel. Upon the evidence so taken, a fair question of fact is presented as to whether the decedent before his death gave to Nette Akin, his son, the moneys on deposit. The surrogate resolved that question in favor of the administrator and directed payment of the proceeds of the account to him.
The decree of the surrogate is attacked upon the ground that the statute in express terms confers upon the surrogate the power in a discovery proceeding to hear and determine an issue, and to make a decree accordingly, only where the issue is raised by an answer which alleges title to or the right to possession of property involved in the inquiry. Assertion by formal answer of a claim to title is a condition precedent, it is said, to the surrogate's jurisdiction to hear and determine a disputed claim of title. Though even where no such answer has been interposed, the inquiry must proceed and "if it appears that the petitioner is entitled to the possession of the property the decree shall direct delivery thereof to him," the appellant urges that the surrogate may make such direction only if it appears that no claim of substance is made to the property. In other words, that where a person directed to appear at the inquiry has a substantial claim *205 to the property, he has the privilege of electing to try his title in the Surrogate's Court or elsewhere, and he does not elect trial in the Surrogate's Court unless he serves an answer setting up his adverse claim.
The language of the statute, especially if read in the light of its history, does not in our opinion so restrict the jurisdiction of the surrogate in discovery proceedings. "The right of an executor or administrator to compel discovery of the decedent's property is not a new one. It has a history recorded in legislation and decision. For many years the law was that in such a proceeding there could be no trial of title. If an opposing claim of title was put forward by sworn answer, the proceeding was dismissed. (Matter of Walker,
In Matter of Hyams (
The order should be affirmed, with costs.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, KELLOGG and O'BRIEN, JJ., concur.
Order affirmed.