In re the Estate of Mahoney

88 A.D. 140 | N.Y. App. Div. | 1903

Smith, J.:

This application was opposed in the Surrogate’s Court upon two grounds only: First, that the surrogate had no jurisdiction of the proceedings as the petitioner was not a creditor within the purview, of the statute, and the proceeding was one to enforce in Surrogate’s Court a judgment of the Supreme Court; that the relief was equitable and not within the jurisdiction of the court; second, that the petition was not properly verified, in that it was made by the attorney for William Jones, without properly stating why it was not verified by Jones himself.

Considering first the second objection. The brief of the appellant criticises the verification of the petition in that it does not appear to have been sworn to before the surrogate. The jurat reads simply that it was “subscribed to before me this 26th day of May, 1902,” to which was the-signature of the surrogate. If that objection had been made at the hearing it could then have been, easily obviated. The objection to the verification at the hearing did mot include this criticism as one of the grounds thereof, but was that the attorney had not stated sufficient grounds why the verification was made by himself and not by the petitioner. As.long- as this ground is not insisted upon upon this appeal, it is hardly worth while to discuss this objection at any length. The affidavit of verification shows that all the papers aré in the hands of the attorney, and that. he is more familiar with the facts than is the petitioner himself. The. facts recited in the petition show that they arp such as must have been almost entirely, if not wholly, within the personal knowledge of the attorney. We think the surrogate properly overruled this objection.

The other objection raised presents greater difficulty. Under section 1825 of the Code of Civil Procedure the petitioner was given the right to make application for leave to issue execution. Upon his application an accounting was had, and by the final order. or decree it was determined that there were certain funds applicable to the payment of the. petitioner’s judgment, and to the. extent of. the ■ funds so applicable execution might issue. No appeal was taken from that order. By section 2552 of the Code this order or decree is made conclusive of the fact that the executor or administrator has such funds. By the wrongful act of the administratrix who has concealed or disposed of the property, the execution has been returned unsatisfied. ■ The administratrix now frankly objects that there, is no power in the court to compel her to pay this sum. If this be true, there has been a serious omission in. the statute by which the administratrix has been allowed to profit by her own ' wrong.

The application for leave to issue execution was a special procéeding. It was instituted upon petition by an order to show cause upon the return of which am accounting was necessarily had. Upon that accounting the Surrogate’s Court determined what was the interest of the petitioner in the funds of the estate in the hands of the administratrix. The determination of the surrogate upon that proceeding resulted in what may be called either a final order or decree under section 2550 of the Code of Civil Procedure. By section 3246 of the Code this judgment is exclusively chargeable upon, and collectible from the estate represented by the administratrix. By subdivision 4 of section 2472 of the Code the Surrogate’s Court has, in addition to the powers conferred upon it or the surrogate by special provision of law, general jurisdiction “ to enforce the payment of debts and legacies, the distribution of the estates of decedents and the payment or delivery by executors, administrators and testamentary trustees of money or other property in their possession belonging to the estate.” We are unable to find any special provision of law giving to the surrogate jurisdiction to enforce payment of these moneys by proceedings for contempt. The provisions of section 2555 refer to decrees of the Surrogate’s Court which in terms direct payment of moneys which are primarily to be enforced by execution from the Surrogate’s Court, or directing affirmatively some act by the administratrix. This decree simply authorizes the issuance of an execution from the Supreme Court. Within the general power, however, to enforce the distribution of estates of decedents and the payment by executors and administrators of moneys belonging to the estate, the court should not deny relief 'to the petitioner, the payment of whose claim has been evaded by the wrongful act of the administratrix. If the judgment or decree directing the payment of the money had been rendered in the Surrogate’s Court and execution had been returned unsatisfied, that decree would be enforced by a proceeding for contempt under section 2555 of the Code. The relief asked for by the petitioner herein should, we think, be reached by a like proceeding, and the obligation of the administratrix to pay the petitioner be thus enforced. The final order of the Surrogate’s Court should, therefore, be affirmed, with costs against the administratrix personally.

All concurred; Houghton, J., not sitting.

Final order of surrogate affirmed, with ten dollars costs and disbursements against the administratrix personally.