Hyperlawhypertext legal database In re Fortune 14 Abb. N. Cas. 415

← Cases

In re Fortune

14 Abb. N. Cas. 415 Court Albany Surrogate's Court ; English

Contents

Majority

p. 415
MATTER OF FORTUNE.
Albany Surrogate's Court ;
July, 1884.

Headnote

Proceeding to Compel Executrix to Account.—Surrogate; jurisdiction.—Executors and Administrators ; accounting; REVIVAL OP PROCEEDING.
Where a legatee dies, pending proceedings taken by him to compel an executrix to account, but, before his death, assigns his legacy, the assignee is entitled to intervene and continue the proceedings.
The surrogate has jurisdiction to allow the intervention.
An allegation of the petitioner’s interest, duly verified, is sufficient, although his interest is disputed.
Petition for leave to intervene and continue proceedings to compel an executrix to account.
In May, 1874, John Fortune died, leaving a will wherein he provided for the support of his niece, Elizabeth' Connick. In September, 1883, Elizabeth, claiming that she had not been paid, began proceedings, to compel the executrix of John Fortune to account and pay the legacy. While the proceeding was pending, Elizabeth died, but before her death assigned her legacy to her husband Michael J. Dwyer, who made a motion to be substituted in her place, and to continue the proceeding.
James F. Tracey and Francis B. Delehanty, for petitioner.
I. The claim was assignable {Code Civ. Pro. §§ 1910, 3347, subd. 11).
II. It is enforceable in this court by the assignee
p. 416
as if he were the original party, according to practice of courts which formerly had jurisdiction of such cases (Code Civ. Pro. §§ 1909, 2481, subd. 11).
III. The expression “commonlaw” in section 2481, means the entire body of law, including equitable and quasi-ecclesiastical jurisdictions (Const. of N. Y. art. 1, § 17; Abbott L. Dict. and Bouvier L. Dict. tit. “ Common Law ; Brick’s Estate, 15 Abb. Pr. 12 , 34 ; Throop’s note to section 2472, Code Civ. Pro.).
IV. Chancery and the prerogative court had, originally, jurisdiction of these matters in this State, and surrogate’s courts succeeded to their powers in this respect (3 Blacks. Comm. 98 ; Brick’s Estate, 15 Abb. Pr. 25 ; L. 1787 [2 L. N. Y. I. & V.’s ed.] p. 71).
V. Quasi-ecclesiastical courts had jurisdiction and it was their practice to revive or continue proceedings of this nature (Brown’s Law of Probate [London, 1873] 297, 298, 159; Brick’s Estate, supra; Pew v. Hastings, 1 Barb. Ch. 452 ).
VI. The practice of chancery is unquestionable (Sedgwick v. Cleveland, 7 Paige Ch. 287 ; Garr v. Gomez, 9 Wend. 649 ; 2 Daniel's Ch. Pr. tit. “ Abatement ”).
Edwin Countryman and Peter A. Stephens, for executrix.
I. There is no authority for this practice (Code, §§ 755, 766, 2472, 2575, 1297, 1299, 2538, 3347, subd. 4, 6).
II. It is not saved by subdivision 2 of section 2481. In common law courts there could be no such substitution (1 Burr. Pr. 281; 2 Archb. Pr. 299 ; Lahey v. Brady, 1 Daly, 443 ; Brick’s Estate, 15 Abb. Pr. 12 , 28, 29 ; Van Allen v. Hewins, 5 Hun, 44 ).
III. If there be such power, its exercise is discretionary (Murray v. Gen. Ins. Co., 2 Duer, 607 ; Ford v. David, 1 Bosw. 569 ; Beach v. Reynolds, 53 N. Y. 1 ),
IV. The deceased had no assignable interest.

Application is made in. this matter by the assignee of the petitioner, who is dead, for leave to intervene and to continue the proceedings begun to require the executrix to account. ■Objection is made by the executrix on the ground, first, that this court has not jurisdictions to allow the intervention; and, secondly, that the assignee took nothing under his assignment. No case in point has been cited on the argument, and I have not been, able to find any case which might serve as a precedent. So the considerations hereinafter stated shall stand as reasons for the decision of the motion. ’

In all matters relative.to the probate of wills and the administration of the estates of deceased persons, this court proceeds in conformity with prescription and established usage, except as .modified by statutory regulation. In this proceeding we have jurisdiction of the subject matter. The executrix has submitted her account to this court, and jurisdiction of the subject matter, having been once acquired, is retained through all the proceedings, from the time letters are issued to the final distribution of the residue.

So we have jurisdiction of the person of the executrix, but we have lost jurisdiction of the original petitioner by her death. But this does not prevent us from allowing the proceedings to be carried on by the executrix, and assignee of the petitioner, who offers to submit himself to our jurisdiction.

Before the adoption of the Code of Civil Procedure, the surrogate had no power to direct the payment of a distributive share or legacy to an assignee thereof (Hitchcock v. Marshall, 2 Redf. 174; Worrall v. Driggs, 1 Id. 449).

The Code, however, has changed this rule, and now an assignee, on the settlement of an account, is entitled to the share of the estate which the assignor

p. 418
would take, had there been no assignment (Code Civ. Pro. § 2743).

The Code has also provided for the enforcement of the claim of the assignee by action or special proceeding, the same as the transferor might have done {Code Civ. Pro. § 1909).

The transferor might assuredly continue this proceeding, and the transferee is entitled to the same rights.

But it is said that the assignee acquired no rights under the assignment.

We shall not determine that question át this time. It is sufficient to say that, on the papers as presented and sworn to, he alleges that he has an interest in the proceeding. An allegation of his interest, duly verified, suffices to apply for an accounting, although his interest is disputed {Code Civ. Pro. § 2514, subd. 11).

The Code not only provides that an assignee should be made a,party {Code, § 2743), but it also provides that a person, interested in the estate, although not cited, is entitled to appear upon a hearing, and thus make himself a party to the special proceeding {Code Civ. Pro. § 2731).

And it is also expressly declared that an assignee is a “ person interested ’ ’ in the estate {Code Civ. Pro. § 2514, subd. 11).

If the decision of this motion be discretionary, then we think that the granting of it is the use of a good discretion. We are, therefore, of the opinion that the prayer of the petitioner, the assignee, should be granted, and an order to that effect will be entered.

Cases cited