Sayre v. Sayre — 3 Dem. Sur. 264

Majority

p. 264

New York County.

Hon. D. G. ROLLINS, Surrogate.

January, 1885.

Sayre v. Sayre. In the matter of the estate of Rachel Sayre, deceased.

Headnote

Upon an application, by the personal representative of a deceased legatee under decedent’s will, to compel the executor thereof to account, the "latter filed an affidavit alleging that he, petitioner’s intestate, and another were the only “heirs at law” of their mother, the decedent, and that they had “divided and settled the estate of their mother, and passed and received releases to each other, and to deponent individually and as executor;” without setting forth the so-called releases or disclosing their character.—

Held, that such affidavit showed no cause why petitioner’s application should not be granted.

Petition by Delia A. Sayre, to compel Henry D. Sayre, executor of decedent’s will, to “make and render a judicial settlement of his accounts and proceedings,” as such executor.

Jonathan Marshall, for petitioner.

Wm. C. Traphagen, for executor.

The petitioner, as the administratrix of the late John J. R. Sayre, who was a legatee under this decedent’s will, seeks to compel an accounting from, decedent’s executor. The executor has filed an affidavit, wherein he alleges that petitioner’s husband, Elizabeth A. Greer, and himself were the “ only heirs at law ” of their mother, the decedent, and that they “divided and settled the estate of their mother, and passed and received releases to each other, and to this deponent, individually and as executor.” The respondent claims, accordingly, that the petitioner has no interest in the estate. It is insisted, in opposition, that the affidavit, assuming its contents to be true, fails to establish such lack of interest in the petitioner. The contents of the so called releases are not set forth, nor are their nature and character in anywise disclosed. The antecedent statement, that the three children of decedent “ divided and settled ” their mother’s estate, does not justify the inference that the “releases” were of such sort as to have precluded the petitioner’s intestate in his lifetime, or herself since his death, from demanding an accounting.

As matters now stand, I must grant the application, but shall delay for ten days the entry of any order. Within that time, the respondent is permitted to file any release or releases referred to in his affidavit, or to file an additional affidavit, containing more definite allegations in the premises.