146 N.Y.S. 707 | N.Y. App. Div. | 1914
The executors under the last will and testament of Simon Scheuer, deceased, having filed their accounts, to which objec
Section 2552 of the Code of Civil Procedure provides that “ A decree, directing payment by an executor, administrator, or testamentary trustee, to a creditor of, or a person interested
Section 2555 thereof provides that “In either of the following cases, a decree of a surrogate’s court, directing the payment of money, or requiring the performance of any other act, may be enforced, by serving a certified copy thereof upon the party against whom it is rendered, or the officer or person who is required thereby, or by law, to obey it; and if he refuses or wilfully neglects to obey it, by punishing him for a contempt of court: * * * 4. Where the delinquent is an executor, administrator, guardian, or testamentary trustee, and the decree relates to the fund or estate, in which case the surrogate may enforce the decree as prescribed in this section, either without issuing an execution, or after the return of an execution, as he thinks proper.”
Therefore, the final decree is declared to be conclusive evidence that there are sufficient assets in the executor’s or testamentary trustee’s hands to pay the sum decreed, and if he does not pay he is liable as for a contempt. (Matter of Strong, 111 App. Div. 281; affd., 186 N. Y. 584.)
The proceedings to charge the appellant with contempt having been regularly conducted there is presented for consideration the question only whether the court had jurisdiction to make the order with which -his disobedience was charged. (Matter of Pye, No. 1,18 App. Div. 306; affd. on opinion below, 154 N. Y. 773.) No question is raised as to the jurisdiction of the Surrogate’s Court to make the decree.
The decree at bar not having been appealed from the order adjudging the appellant guilty of contempt for his willful disobedience thereof was made by the surrogate in the exercise of his discretion and clearly within his express power.
The order appealed from should be affirmed, with ten dollars costs and disbursements to the respondent.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.