144 Misc. 177 | N.Y. Sur. Ct. | 1932
The decedent died seized of an improved parcel of real estate upon which he had, on or about July 16, 1926, executed a mortgage to the City Housing Corporation for the sum of $12,375. The debt, the payment of which was secured by the aforesaid mortgage, was evidenced by the testator’s bond for like amount, bearing interest at the rate of six per cent per annum, payable, principal and interest, in equal monthly installments of $82.50 in advance, until the total amount of principal and interest should be fully satisfied. At the time of his death there was unpaid on the bond the sum of $11,475.91. The real estate was assessed at $8,300 and appraised at $10,000 in the transfer tax proceeding. The executors have sold the property to a purchaser
1. That the respective claims are not valid and subsisting liquidated claims against the estate of decedent.
3. That the claim and claims are invalid and do not comply in fact or in form of presentation with the requirements of section 207 of the Surrogate’s Court Act.
4. That the claimant or claimants if the said claim or claims should become valid and liquidated in amount would have an ample remedy at law against the proper distributees of the estate.
Not much time need be spent in considering the first ground of objection, as neither claimant contends that it presently has a liquidated claim against the estate of the decedent. The claims, if provable at all, must be treated as contingent and unliquidated. The court, having in effect given the claimants time to present and file their claims, and being in accord with Surrogate Wingate that the pertinent provisions of section 207 of the Surrogate’s Court Act should not be construed as placing a short statute of limitations upon the presentations of such claims (Matter of Weissman, 140 Misc. 360), overrules the second objection that they were not filed prior to the expiration of the time limit for the presentation of claims in the advertisement therefor. The third objection is also overruled, as I am of the opinion that the proofs of claim conform to the statute. The fact that the claimants may have a remedy over against the legatees does not deprive them of the right to have a reservation made, if their claims are properly provable against the decedent’s estate.
The sole question, therefore, is whether or not either or both of the claims are provable against the estate of the decedent. Consideration will first be given to the claim of the City Housing Corporation. Except for the guaranty of payment given to the Equitable Life Assurance Society of the United States, tins claimant, having parted with its entire interest in the bond and mortgage, would have no provable claim against the decedent’s estate. However, as a guarantor, it would be hable in a foreclosure action to the extent of its guaranty. Having agreed to pay a part of the debt for which the decedent was primarily answerable, it stands in the relation of a surety for him (Gerseta Corporation v. Equitable Trust Co., 241 N. Y. 418), and as such comes within the provisions of section 207. The failure of the holder of the senior interest to present a claim and the fact that the property appears to be worth at least the sum of $6,500, coupled with the amortization requirements of the bond, leads me to conclude that it is not necessary here to decree a reservation for the full amount. A reservation of $1,500 appears to be ample protection.
Submit decree settling the account, directing distribution and providing for a reservation of $1,500 for the benefit of the City Housing Corporation in accordance with the provisions of section 207 of the Surrogate’s Court Act.