In re the Estate of Lowenthal — 148 A.D. 487

Majority

p. 487

In the Matter of the Estate of Joseph S. Lowenthal, Deceased. Elizabeth Lowenthal, Individually and as Executrix, etc., of Joseph S. Lowenthal, Deceased, Appellant; J. & J. Eager Company and Others, Respondents.

Third Department,

December 28, 1911.

Headnote

Decedent’s estate —proceeding to compel representative to file inventory — proceeding by attorney of creditor.

While under section 2716 of the Code of Civil Procedure the creditor of an estate or a person interested therein may maintain a proceeding to compel the representative to file an inventory, it may not be instituted by a mere agent of the creditor, although such agent in certain eases may verify the petition by reason of the absence of the creditor from the State.

A proceeding to compel an executrix to file an inventory was brought by the attorney of a creditor of the estate. The affidavit of the executrix showing that there were no assets was uncontradicted. Held., that an order directing her to make an appraisal and file an inventory should be reversed.

Houghton, J., dissented, in memorandum.

Appeal by Elizabeth Lowenthal, individually and as executrix, etc., from an order of the Surrogate’s Court of the county of Warren, entered in said Surrogate’s Court on the 19th day of August, 1911, directing the executrix to make an appraisal of the personal estate of the deceased and to file an inventory.

Chambers & Finn [ Walter A. Chambers of counsel], for the appellant.

Charles R. Patterson, for the respondents.

This proceeding to compel the executrix to file an inventory was started upon the petition of Charles R. Patterson, who was not a creditor of the estate and was in no way interested therein except as the attorney or agent of certain creditors. By section 2716 of the Code of Civil Procedure it is provided that such a proceeding may be instituted by a creditor or person interested in the estate. There is no provision that it may he

Dissent

p. 488

instituted by an agent of such creditor, and to come within the provisions of the Code- the application must be in form, made hy the creditor, although in certain cases the .attorney bap authority to verify the petition by reason of the absence of the creditor from the State.

But the proof here is to the effect that there is no estate of the deceased. This is sworn to distinctly by the executrix. It is difficult to see how it is possible for her to cause an appraisal of an estate that does not exist, or to make an inventory where there is nothing to inventory. Upon her affidavit, which stands here uncontradicted, the inventory would contain blank schedules only, and the law never requires useless things to he done. If she is concealing property, the Code has provided proceedings by which that maybe investigated. And. further, if such be the case, she is guilty of perjury in swearing to her affidavit, and may be prosecuted therefor.

The order should be reversed, with ten dollars costs and disbursements against the petitioner, and the motion denied, without, costs.

Sewell, J., concurred; Kellogg and Betts, JJ., concurred in result; Houghton, J..., dissented in memorandum.

(dissenting):

I think the petition was properly made hy the attorney in . behalf of the creditors which he represented. There is no dispute that the parties named in the petition, were creditors or -that the attorney had authority to act for them. The fact that the executrix made an affidavit that there was no property to inventory did not prevent the surrogate from requiring her to make an inventory .setting forth that fact. The filing of an inventory is one of the steps provided by statute in .the-administration of an estate. If the executrix shall exhibit no property to the appraisers they can -certify to that -fact and she can verify their statement.

I think the order was right and should he affirmed.

Order reversed, with ten dollars costs and disbursements and motion denied, without costs.