4 Keyes 136 | NY | 1868
The claim of the appellants, at the time of the final account, was disputed within the meaning of the statute. When it was presented to the administrator, it was
It is said, that if the administratrix doubted the claim, she should have offered to refer it, and by not doing so, it became a liquidated and an undisputed demand against the estate. The answer to this proposition is, that neither party chose to consider it in that light, and on the hearing before the surrogate, it was contested and rejected. Had it not been, there was no necessity for the introduction of evidence, and it would have been allowed as a matter of course. Bor can the claim be regarded as one about which the representatives Shad no knowledge whatever, and which they were not in a condition either to admit or deny, and therefore was cogniza■ble by the surrogate under the provisions of the statute. (2 B. S. 96, § 71.) I think that the statute does not cover any -such case, and that representatives in the discharge of their .duties are not at leave to occupy the equivocal position of .neither allowing nor rejecting an account presented. The .statute makes provision, that if the representative doubts the correctness of the claim, he may enter into an agreement to refer it (2 B. S. 88, § 36); but it nowhere authorizes him to hold the question of allowance or rejection in abeyance until a final accounting is had, when the claim can be contested or allowed at his volition.
The claim being clearly a disputed one, the question arises, whether the surrogate of a county has jurisdiction to hear, try and determine the amount and validity of a disputed demand upon a final accounting of an executor or administrator.
The power of the surrogate to act and to adjudicate in such .a case depends upon the construction to be placed upon section ',71 of 2 Bevised Statutes, 96, before cited, which relates to the
If these views are correct and these decisions cited are to be considered as' decisive, then the question arises, whether the submission of the claim by the respondent and its rejection was binding and final as an arbitration, so as to preclude its enforcement afterward. It is claimed that such is the case. As the surrogate had no original jurisdiction and ex-' ceeded his powers, I think that the proceedings must be regarded as coram non judice and void, unless they can be upheld upon the ground that it was an arbitration binding upon the parties who were all represented on the occasion, consented to the proceedings, took part in the same, and submitted the matter to the surrogate. It is conceded that administrators have no power to arbitrate; and I do not think that this rule can be waived or obviated because the creditor, next of kin and administrator were present and participated in the proceeding. For if it was binding on the creditor and next of kin as an arbitration, it was not on the administrator, and being invalid as to one of the parties, would not be obligatory upon the others. The proceeding was not in any sense an arbitration, but it was the proceed
It is said that the provision of the statute (3 E. S., 5th ed., 181, § 72), to the effect that the final decree of a surrogate upon the final settlement of an account, etc., shall have the same force and effect as the decree or judgment of any other court of competent jurisdiction, etc., applies to the decree of the surrogate in proceedings had on the final accounting, and is a bar to the application made by the respondent. The statute cited relates, I think, to a decree and judgment made according to law and within the jurisdiction of the surrogate, and not to a decree or judgment where that officer has plainly exceeded his authority, as was the case here. In the latter case, the decree, having been made without authority, is not a bar, and can have no effect in preventing further action.
It is also insisted by the counsel for the appellants that if the claim was disputed and the surrogate had no jurisdiction to try the question as to its validity, that then it is barred by the statute of limitations. The statute in question (2 E. S. 89, § 38) enacts, that if a claim against an estate of a deceased party shall have been disputed or rejected, and shall not have been referred, the claimant, within six months thereafter, or within six months after the debt or any part thereof shall become due, shall “ commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon,” etc. In Whitmore v. Foose (1 Den. 159), it was held that the limitations of actions provided by this statute, is only applicable to cases where the presentment and rejection of the claim is after the publication of notice requiring creditors to present their claims against the estate, as authorized by § 34 of the same title. The decision in this case is, I think, a correct exposition of the statute, and I am unable to see how any distinction can be made between the case cited and the one under consideration.
The fact that the estate was improperly applied does not sufficiently appear by the proceedings, and it is not shown that the mortgage paid was not executed by the intestate, and that he was not personally bound to pay the amount secured thereby. In the latter case there could be no objection to the application made; it could not be said that the whole of the personal estate had not been duly applied. (2 E. S. 101, § 10.)
The application to sell the real estate may be made, whenever it is discovered that the personal estate is insufficient to pay the debts. (Laws of 1837, chap. 460, § 40; 3 B. S., Sth ed., 187.) And in this case it is conceded, that even if the sum alleged was improperly paid, there was still insufficient to pay the whole of the respondent’s demand. This last fact would entitle the respondent to pay from some source, and if the personal estate was not enough then why should not the real estate be appropriated for that purpose ? It is said that the surrogate must be satisfied that the personal estate of the deceased is insufficient, and that the whole estate which should have been applied to the payment of the debts of the deceased, has been duly applied for that purpose. (1E. S. 102, § 14, sub. 13.) The answer is, that the application was not rejected upon any such ground, and it nowhere appears that he was not satisfied. If the decree had thus stated, the point might he properly before us, but as it stands does not arise.
The order of the General Term must be affirmed, and the proceedings remitted to the surrogate’s court of Erie county with directions to proceed thereon. The respondent also should have costs upon the appeal to be paid out of the estate.
Order of General Term affirmed.