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In re the Compulsory Accounting of Waring

1 Gibb. Surr. 49 Court N.Y. Sur. Ct. English

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p. 49
In the Matter of the Compulsory Accounting of Oscar Waring et al., as Executors.
(Surrogate’s Court, Westchester County,
Filed March, 1894.)

Headnote

Execution.
An execution to enforce a surrogate’s decree directing the payment of a sum of money by an executor should run against the property of the executor, and not against that of the estate.
A decree was made in this proceeding directing the executors to pay to Ann M. Paddock and Phebe B. Rockwell, each, the sum of $6,082.55. A transcript of the decree was filed, and the decree duly docketed in the county clerk’s office, and thereupon executions were issued, which, among other things, directed the sheriff to make such sum, in each case, out of the goods, etc., of Jarvis A. Waring, deceased, and if sufficient could not be found, then out of the real property of the deceased. The sheriff seized some securities left by the testator. A motion is now made to set aside the executions.
F. X. Donoghue, for motion; James M. Hunt, opposed.

The executions are clearly void, and should be set aside. They should have run against the property of Oscar Waring and Wilbur F. Washburn, and not against the property of the estate. Section 2554 of the Code permits execution to be issued against the property of the party directed to make the payment. The next section authorizes, in a proper case, the surrogate to punish the party for contempt for not making the payment as decreed. That, of course, would be a proceeding against his own person. In Peyser v. Wendt, 2 Dem. 221 , the surrogate of New York took the view that the execution was properly issued against the property of the executor and cited authorities on the subject. The Court of Appeals has held the same in

p. 50
Power v. Speckman, 126 N. Y. 354 -359. See form of execution in Redf. Pr. (5th ed.) 1009, substituting, however, the letters “ Y. Z.” for “A. B.” in last clause.

The executions must, therefore, be set aside, and all proceedings under them consequently fall.

Motion granted.

Note. — An execution to enforce a decree directing payment by an executor as such must run against his property. (Matter of Quackenbos, 38 Misc. 66 .)

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