Majority
Headnote
In a special proceeding, instituted by executrix, under Code Civ. Pro., § 2706, to discover certain personal property alleged to belong to decedent, and to be in the possession of respondent, the latter filed an answer, setting forth “that the only chattels or property of any kind in the possession of this respondent were and are such ornaments which were, preceding the death of said” decedent, “given to this respondent by said decedent ”.....“ and that the same is her own property; and that the said ” executrix “ has no title or interest therein ; and that she has no books or papers or property of any kind belonging to said estate.”—This is an application under § 2706, by executrix of deceased, for an order directing respondent to submit to an examination as to the whereabouts of certain personal property of deceased.
The Code provides (§ 2710): “In case the person so cited shall interpose a written answer, duly verified, that he is the owner of said property, or is entitled to the possession thereof by virtue of any lien thereon or special property therein, the Surrogate shall dismiss the proceedings as to such property so claimed.” I do not think the answer interposed by respondent is sufficient; it is too general. She does not allege that she is the owner or is entitled to the possession of the specific property described in the petition by virtue of any lien thereon or special property therein; and the allegation that she has no books or papers or property of any kind belonging to the decedent’s estate would not be sufficient to dismiss the petitioner’s proceeding; for in order to do this it must appear in the answer that the respondent has possession of the specific property described in the petition, but is the owner of it.