89 N.Y. 352 | NY | 1882
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *354
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *355
We are of the opinion that the surrogate of Rockland county, had jurisdiction on the final settlement of the accounts of the defendants, as administrators of the estate of Alexander Waldron, to pass upon and settle the claim of the plaintiff as administratrix of the estate of Sarah Byron, against the estate of Alexander Waldron, arising out of the instrument of November 4, 1828. The plaintiff was administratrix of both estates. By 2 Revised Statutes, page 88, section 33, it is provided that "no part of the property of the deceased shall be retained by an executor or administrator, in satisfaction of his own debt or claim, until it shall have been proved to, and allowed by, the surrogate; and such debt or claim shall not be entitled to any preference over others of the same class." At common law an executor or administrator had the right to retain for his own debt due to him from the deceased, in preference to all other creditors of equal degree. This privilege extended not only to debts which he claimed beneficially, but to those to which he was entitled as trustee. (Rogers v. Hoosack's Ex'rs, 18 Wend. 319; Plumer v. Marchant, 3 Burr. 1380; Williams on Ex'rs, 1039.) This rule *356
is said to have resulted by operation of law, on the ground that it is absurd and incongruous that an executor or administrator should sue himself, or that the same hand should at once pay and receive the same debt. (Williams on Ex'rs, 1040; Kyle v.Kyle,
The Revised Statutes by the section quoted, abrogate this common-law rule, and the section as construed, confers upon the surrogate jurisdiction to adjudge and allow, or disallow a claim of an executor or administrator, whether legal or equitable, against the estate he represents. (Kyle v. Kyle, supra;Shakespeare v. Markham,
This leads to a reversal of the judgment.
All concur, except MILLER and TRACY, JJ., absent.
Judgment reversed. *357