16 Barb. 556 | N.Y. Sup. Ct. | 1853
The moneys sought to be reached by the petitioners by calling- the defendant to account as administrator, before the surrogate, were the proceeds of certain real estate which came to the deceased wife of the respond
1. The defendant as administrator was not entitled to the .bonds and mortgages by which the purchase money of the real
2. The surrogate has no authority to inquire into or settle the rights of the heirs at law to property in the hands of the executor or administrator. The powers and duties of surrogates are prescribed by law, and do not include the power to adjudicate between the heir and personal representative. (2 R. S. 4th ed. 418, § 1.) An heir at law has no place given him by statute in the surrogate’s court to compel an accounting by the executor or administrator. That right is confined to creditors, legatees and next of kin. (2 R. S. 4th ed. 277, § 57.) The next of kin only, and not heirs at law, are to be cited to attend upon the accounting. (Id. 278, § 66.) Their rights can be passed upon by the surrogate. An adjudication upon the rights of the heirs at law would be simply void. Upon the settlement of the account the surrogate must follow the statute of distribution in directing the disposal of the estate after the payment of debts and legacies, and cannot be guided by the statute of descents.- (Id. 281, § 82.) The petitioners claim in this case as next of’kin, and were compelled to do so, to entitle themselves to the citation, and when it appeared that their claim was as heirs at law, the petition was properly dismissed.
If the moneys are deemed to be personal property, an account
Gridley, W. F. Allen and Hubbard, Justices.]
Upon either view of the case the surrogate properly dismissed the petition, and the order must be affirmed with costs.