In re the Estate of Roos — 132 Misc. 749

Majority

p. 749

In the Matter of the Estate of Maria A. Roos, Deceased.^[1]

Surrogate’s Court, Bronx County,

June 9, 1927.

Headnote

Executors and administrators — executrix has no right to pay claim to herself unless proved and allowed under Surrogate’s Court Act, § 212 — attorney for adults may stipulate that evidence previously taken may be considered — supplemental citation must be issued to infants who have not appeared.

The executrix had no right to pay to herself a claim which she alleges she had against the estate, in the absence of proof and allowance by the surrogate under section 212 of the Surrogate’s Court Act.

The matter can only be adjudicated with all the parties before the court. Where adults have appeared by an attorney duly authorized in an accounting proceeding, the attorney may stipulate that the evidence previously taken may be considered, but as to infants, a supplemental citation must be issued, and the same is true as to all persons who have not appeared.

Proceeding for compulsory accounting of executrix.

Michael Cooper, for the objectants.

Finis E. Montgomery, for the executrix.

It appears from an examination of the papers in this matter that the executrix has paid to herself a claim which she alleged she had against the estate. This she had no right to do until the same was proved to and allowed by the surrogate (Surrogate’s Court Act, § 212), and without the payment of this claim there would be a surplus in the account. Such being the case, the matter1 should not be adjudicated without having all parties before the court. Some of them, who are adults, have appeared by attorney duly authorized, and he could, if he so desired, present a stipulation consenting that the evidence which has been taken in this matter shall be considered with the same force and effect as though the same had been taken after his appearance. There is an infant, however, whose interests are involved; he cannot consent, and a supplemental citation should, therefore, be issued to him, and to all other persons who must be

p. 750

cited on the petition for a judicial settlement of the account, except such as have appeared (Surrogate’s Court Act, § 260), before the matter may be determined.

Submit order directing the issuance of supplemental citation accordingly.