14 Barb. 376 | N.Y. Sup. Ct. | 1852
I doubted, on the argument of this appeal, as to the power to hear it at special term. I cannot say that subsequent examination or reflection have satisfied me that the power exists. The revised statutes provided that an appeal of this kind might be made to the court of chancery. (2 R. S. 610, § 104.) The court of chancery being abolished, its powers and jurisdiction were conferred on the supreme court. (Judiciary act of 1847, § 16.) The judiciary act provided that the justices of the present supreme court should possess the powers and exercise the jurisdiction possessed and exercised by the late justices of the supreme court, chancellor, vice chancellors, and circuit judges, so far as the powers and jurisdiction of said court and officers were consistent with the constitution, and the provisions of the judiciary act. (Ibid.) Formerly, an appeal of this kind was heard by the chancellor; whether at a regular or special term of the court, can be, it seems to me, of no consequence to inquire. An appeal from the determination (in an appealable case,) was directly to the court for the correction of errors. Now the appeal from the surrogate is to the supreme
Wever presented his petition to the surrogate of the county of Albany, praying that Francis I. Marvin and Uriah Marvin render an account of their proceedings as executors of Uriah Marvin, deceased. An executor, after the expiration of eighteen months from the time of his appointment, may be required to render an account of his proceedings, by an order of the surrogate, to be granted upon the application of some one having a demand against the personal estate of the deceased, either as creditor, legatee, next of kin, or of some person in behalf of any minor having such claim; or without such application. (2 R. S. 92, § 52.) When Wever made the application, more than eighteen months had elapsed from the time of granting letters testamentary. His petition stated that he was “ a creditor of Uriah Marvin, late of the city of Albany, deceased, and as such has claims against the estate of said deceased.” This was all that was set forth in the petition, or otherwise, as to his being a creditor, or the nature of his claim.
• The order of the surrogate was not made upon his own motion, but upon the application of Wever; and the first question arising upon the appeal is, whether enough appeared in the petition upon which the citation was issued, to show that Wever, the applicant, was “ a person having a demand against the personal estate of the deceased,” as a creditor. It is stated that he has claims against the estate of the deceased, as a creditor. It is not stated, to be sure, in terms, that as creditor he has a claim against the personal estate; but I think the allegation cannot
The issuing of an attachment against Uriah Marvin was objected to, on the ground that he was not an executor; letters testamentary having been issued only to Francis I. Marvin, which latter fact was affirmatively shown. The surrogate made an order granting the attachment as against Francis I. Marvin, but denying it as against Uriah Marvin.
The revised statutes provide that “ every person named in a will as executor, and not named as such in the letters testamentary, or in letters of administration with the will annexed, shall be deemed to be superseded thereby, and shall have no power or authority whatever, as such executor, until he shall appear and qualify.” (2 R. 8. 71, § 15.) In this case it appeared affirmatively, that although Uriah Marvin was named in the will as executor, he was not named as such in the letters testamentary; nor was there any proof that he had ever appeared in the surrogate’s court, and qualified. By the express provision of the statute he was superseded, and had no power or authority whatever, as executor. The surrogate could make no order that he account as executor. He had not been appointed by the surrogate, and though named in the will, was by force of the statute superseded and divested of all power and authority.
The counsel for the appellant insists that as Uriah Marvin signed the notice of appraisal, and subscribed and swore to the affidavit annexed to the inventory, he is estopped from denying that he is executor. But the doctrine of estoppel in pais cannot be applied. The surrogate cannot make or enforce an order that a person account as executor to whom letters testamentary have not issued pursuant to the provisions of the statute. He
Wright, Justice.]
The question in this case was one of power, with the surrogate. As I view it, he might as well have called upon any other person not named in the will, but who should choose to sign the notice of appraisal, and swear to the affidavit annexed to the inventory, as upon Uriah Marvin, to account before him. In an action by the proper parties, if Uriah had taken possession of the personal estate, he not being executor or administrator, he would undoubtedly be liable, and under certain circumstances the doctrine of estoppel might be applied; but the power of the surrogate to enforce an accounting is limited to the executor or administrator to whom letters have issued according to law, and who have appeared and qualified. Here, it affirmatively appeared that Uriah Marvin was not named in the letters testamentary. He had not been appointed, according to law, executor, and although named in the will as such, had, by operation of the statute, been superseded.
I think there is no error in the order of the surrogate, and that it should be affirmed.
