25 Misc. 255 | N.Y. Sur. Ct. | 1898
Tbis proceeding was instituted by an alleged creditor of tbe decedent, under section 2727 of tbe Code of Civil Procedure, to compel an accounting by tbe executor of tbe estate: An order was made directing, tbe respondent to file bis account, which be did. In a schedule annexed to sucb account it was stated tba,t tbe petitioner bad filed a claim against tbe estate for $500, but that it bad been rejected and no proceedings bad been taken to enforce tbe same. The only objection filed by the petitioner to tbe account was in respect to tbe allegation that bis claim bad been rejected. While this court has no power to pass upon the question of tbe validity of a, claim filed against an estate, it has jurisdiction, where there is a dispute upon that point, to determine whether or not tbe claim was rejected by tbe representative of tbe estate, and if it finds that it has been disputed or rejected, and that within the time specified in tbe statute no proceeding has been begun for its enforcement, tbe surrogate must regard such claim as barred, and must enter a decree disregarding it, and directing distribution of the estate among the parties entitled. If it shall find that tbe claim has not been so disputed or rejected, it must be considered as liquidated and as an undisputed debt, which tbe representative is obliged to pay. Bowne v. Lange, 4 Dem. 350, and cases there cited. A reference having been ordered, the referee has reported that the claim made in the account that tbe executor, rejected .the claim, on or. about December 12, 1895, is erroneous, and tbe objection thereto, to that extent, should be sustained; but, at tbe same time, he finds that tbe claim not having been admitted by tbe executor as a just and proper one to tbe amount thereof, no decree for Its payment can be made until tbe amount thereof shall be deter
Decreed accordingly.
