39 Misc. 477 | N.Y. Sur. Ct. | 1902
The petitioner seeks to obtain an order requiring the executors of the testator to file an inventory of his estate. In the petition he alleges that he “ has a large claim against the estate which he is diligently prosecuting,” hut no other particulars of his claim are set forth. In the affidavit upon which his order to show cause is based he sets forth the grounds of his claim and cause of action to he as follows:
The petitioner is, and since 1894 has been, a stockholder of the Central Pacific Railroad Company. He says that “ during the years 1865, or thereabout,, to 1898, or thereabout, the testator was an officer and director of said company, and that he, together with Leland Stanford, Charles Crocker, Mark Hopkins, and others, controlled its business and corporate acts; and that he and his associates were also interested, during those years, in the Contract and Finance Company and the Pacific Improvement Company. On behalf of the Central Pacific Railroad Company the testator and his associates entered into contracts with themselves, acting under cover of the said companies, for the construction and equipment of the Central Pacific Railroad, and the said construction companies profited by said contracts to the extent of $125,000,-000. On these facts the petitioner has made demand on the hoard of directors of the Central Pacific Railroad Company to bring suit against the estate of the testator for an accounting and for a decree that the executors of said estate pay over “ to the Central Pacific Railroad Company ” such sum as shall be found due on said accounting. Ho such action having been brought by the company, the petitioner has commenced an action for the same relief, which is now pending in the Supreme Court.
If all of these facts are true, and if they are sufficiently stated, and if the action in the 'Supreme Court shall end in a decree
The petitioner’s claim is disputed and denied. I am without jurisdiction to try and determine the issues raised, or to adjudge the petitioner to be a creditor of the estate of the testator, even if his allegations, uncontradicted,, would make him a creditor. I
The respondent concedes that, until his claim has been reduced to judgment, he has no strict legal right, but he argues that, under the general power of a surrogate to direct and control the conduct of executors and administrators, I may and should require the filing of an inventory, as a duty imposed by statute upon all ex-executors. In support of this contention he cites Thomson v.Thomson, 1 Bradf. 24 (1849) ; Cotterell v. Brock, id. 148 (1850); Forsyth v. Burr, 37 Barb. 540 (1862) ; Creamer v. Waller, 2 Dem. 351 (1884). Other and later decisions may be found to the same effect, but they all rest on the cases decided by Surrogate Bradford in 1849 and 1850, without discussion as to the reasons for the rule. Surrogate Bradford discusses the practice of the English ecclesiastical court, which was, of course, based on special powers belonging to them not at all applicable here, and rests his decision on a provision of the Revised 'Statutes then in force. This provision of law was repealed when the Code of Civil Procedure took effect, on September 1, 1880, but it does not seem to have been noticed that these early cases were thus Tendered obsolete. The power of control by a surrogate over executors and administrators is, by the Code of Civil Procedure, required to be “ exercised in the cases, and in the manner prescribed by statute.” Section 2472. Section 2716 prescribes the only cases in which the filing of an inventory may be compelled, and it can now only be done on the application of “ a creditor or person interested in the estate.”
The purpose of filing an inventory is to give information to the parties having interest in the assets. Even if a discretionary power could be spelled out from the statute, to require the exhibition of the affairs of the estate on the request of a person holding an unproved and disallowed demand, such discretion should be
The application is denied.
Application denied.