57 A.D. 430 | N.Y. App. Div. | 1901
The respondent filed his petition on the 11th of July, 1898, in the Surrogate’s Court of the county of New York, alleging that he was a creditor of David Clarke, deceased, and asking that the executors of his will be required to render an account as such. An order to show cause was made why a citation should not be issued. Upon the return day of the order to show cause one of the executors filed an affidavit which appears in the record, in which it was stated, among other things, that they did not admit the validity of the claim upon which the petitioner based his right to an accounting. A citation, however, was issued and the account was filed.
By that account it appeared that the executors had paid to the legatees under the will of David Clarke something over $17,000; and that they had left in their hands the sum of $6,893 for distribution. It further appeared that on the 7th of July, 1898, the executors had received from Albert W. Seaman, as trustee of Eliza Eagle, a claim held by him against the estate of their testator for $17,872.17, with interest from June 20, 1880, which claim was alleged to arise out of six different judgments of deficiency which had been docketed against Clarke in his lifetime. It Was further stated in the account that on the 22d of August, 1898, the executors duly rejected said claim and served a notice thereof on the attorney for Seaman. Seaman filed objections to the account, insisting that the judgments held by him were valid claims against the estate, and that the payments to the legatees under the will should not be allowed. Upon this petition a supplemental citation was issued to the legatees who had received these payments, and they were brought into the litigation. After that had been done a hearing was had before the surrogate. No evidence was offered by either party upon that hearing, but the matter seems to have been presented to the surrogate upon the papers used to procure the citation, and' the account and the objections. No proof was given by Seaman of the existence of the judgments, nor was the fact that those judgments had been recovered established in any manner or attempted to be established.
It is claimed on the part of the appellants that when the claim was rejected by them, the duty was placed upon the claimant to establish the existence of his debt either by an action or á reference, or upon the final accounting. It is claimed on the part of the respondent that the judgments are practically admitted by the papers, and that the only question raised by those papers is whether or not the judgments were paid or in some way have ceased to be - charges against the estate of the testator-.
In considering the case it is necessary to bear in mind that the decree was-made on the 10th of November, 1899, and that, although an application was made by the executors after that time to reopen the decree, yet the papers used on that application were not before the surrogate when the decree was made and cannot be referred to as proof of admissions of the facts upon which the decree was based, if, indeed, they can be said to be admissions at all. The question is whether, at the time the decree was entered, there was proof before the surrogate which-would warrant the finding of the existence of those judgments.- ■ •
That question we think must be answered in the negative.' Sea-
For these reasons the decree of the surrogate must be reversed and the matter remitted to him for a further hearing, with costs and disbursements to the appellant to abide the event.
Van Brunt, P. J., OBrien, McLaughlin and Hatch, JJ., concurred.
Decree reversed and matter remitted to surrogate for further ¡hearing, with costs and disbursements to appellant to abide event.