2 Mills Surr. 559 | N.Y. Sur. Ct. | 1902
— This matter was first before the court on an application made by William Jones, who had obtained judgment against Mary Mahoney as administratrix of said Patrick Ma-honey, deceased, to compel the administratrix to pay the said judgment, and it was decided in that proceeding that a party holding a judgment against an administratrix recovered upon a claim which did not exist at the time of the decedent’s death was not a creditor of the estate within the meaning of section 2722 of the Code, following the cases of Hall v. Dusenbury, 38 Hun, 125; Matter of Foley, 39 App. Div. 248.
The judgment creditor now makes this application for leave
Petitioner’s claim is a judgment for costs recovered in an action brought by the administratrix on a claim alleged to be due decedent in his lifetime. To which class of claims does it belong? The condition of the assets is such that if it must come in with the general creditors of the decedent there will be little or nothing to pay it from, while if it is allowed equality with the other claims and expenses incurred in the administration of the estate it will receive a large percentage on the distribution. It is not included among the “ debts ” mentioned in section 2719 because the owner of it is not a creditor of the estate as has already been shown. Hall v. Dusenbury, supra; Matter of Foley, supra. It is not'controlled by the provision of section 2719 to the effect that commencement of a suit for the recovery of a debt or the obtaining a judgment thereon against the administrator or executor shall not entitle such debt to preference over others of the same class. There was no debt here against the administratrix; section 3246 requires the judgment to be collected out of the estate and while I find
The petitioner’s judgment, being entitled to preference over the general creditors of deceased, it is no answer to the application to say that the administratrix has paid the debts in full and thus disposed of the assets of the estate. Such payments are made at her peril and she must still respond to the persons entitled thereto for the funds so distributed. The .account and proofs filed in this proceeding show that the administratrix received personal property belonging to the estate of the value of $560. She has paid for funeral expenses, which have preference, $55. She has paid out for other expenses of administration, $21.50 on application for letters. She has paid $32 for taxes, and her commissions are $28 and .she is entitled to exempt property as shown by the account of $180; making a total of $322.50, and leaving a balance in her hands of $237.50 applicable to petitioner’s claim and the claim of her own attor
Decreed accordingly.