10 Mills Surr. 273 | N.Y. Sur. Ct. | 1913
In this proceeding a petition was presented to the Surrogate’s Court praying for a decree directing the executors to pay the claim of the petitioner. One of the executors, Mortimer Hyatt, and the petitioner, Ralph 0. Hiler, both testified that the work which was performed, as mentioned in the petition presented herewith, was ordered by said executor Mortimer Hyatt. In other words, the claim in question was under a contract which had evidently been entered into by one of the executors subsequently to the death of the testatrix, Pamela Hyatt.
Under the provisions of section 2722 of the Code of Civ. Procedure, a petition may be presented: “ By a creditor, for the payment of a debt, or of its just proportionate part, at any time after six months have expired since letters were granted.’’
The word “ creditor,” as used in the section of the Code
In the case of Bulkley v. Staats, the court held as follows: “ The Surrogate has no power to direct the payment of a claim created by the executor. The jurisdiction is * * * only to claims against the deceased.”
In the case of Hall v. Dusenbury, the decision was as follows: “ The term ' creditor ’ is confined to those persons to whom the deceased was indebted during his lifetime.”
The claim of a creditor of a decedent’s estate, which, under section 2722 of the Code of Civil Procedure, the executor may be directed by the surrogate to pay, is a liquidated claim undisputed ; and the liquidation can be only on an accounting not of the acts of the executor, but of deceased, which can be made by the surrogate only on consent of the parties as provided by section 1822 of the Code of Civil Procedure.
Clearly the petition presented in this case asks for the payment of a claim which had been ordered and created by the executor subsequently to the death of the testatrix. The Surrogate’s Court has no jurisdiction to determine claims of this character.
Petition dismissed.
