Majority
p. 224New York County. Hon. D. G. ROLLINS, Surrogate. July, 1886. Matter of Davidson. In the matter of the estate of John B. Davidson, deceased.
Headnote
Where a direction to an executor, to pay a specified sum to a person named, is contained in a decree admitting a will to probate, want of assets may be set up in answer to an application to punish for contempt for disobedience thereto.Order to show cause why executor should not be punished for contempt for refusing to pay to petitioner $106, awarded to him as stenographer’s fees by decree admitting will to probate.
Louis E. Post, for Fdw. F. Underhill.
Gibbons & House, for executor.
The decree by which this re
p. 225
spondent was directed to pay the petitioner moneys out of the estate was not entered in a proceeding wherein it had been, as a result of inquiry, judicially ascertained and determined that the respondent had moneys of the estate in his hands' applicable to the payment of petitioner’s claim 5 on the contrary, the direction for payment was given in the decree admitting the will to probate. The contention of petitioner’s counsel that respondent cannot now interpose the non-existence of assets as a reason why he should not be punished for contempt in disobeying the decree in question is unsound. Motion denied.