In re the Accounting of the National Commercial Bank & Trust Co.

Majority

p. 627

In the Matter of the Accounting of the National Commercial Bank and Trust Company of Albany, as Administrator with the Will Annexed of Stephen W. Whitney, Deceased. American Surety Company of New York, Appellant; George P. Whitney, Respondent.

Headnote

Decedent’s estate — agreement by legatee to pay sum of money out of his share of his estate — when does not constitute assignment so as to authorize surrogate to direct administrador to pay amount.

Matter of Whitney, 206 App. Div. 582 , affirmed.

(Argued February 27, 1924;

decided April 1, 1924.)

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 19, 1923, which reversed a decree of the Albany County Surrogate’s Court directing the payment to appellant of the sum of $10,000 out of the respondent’s

p. 628

share of the estate of Stephen W. Whitney, deceased. The claim was based upon the following writing:

“ Brooklyn, N. Y., June 9, 1922.

■' I hereby agree to pay to the American Surety Company of New York out of my share of the estate of my father, Stephen W. Whitney, the loss which the said surety company sustained while acting as my surety in favor of the Albany City National Bank, at Albany, N. Y., amount of said loss being ten thousand dollars ($10,000).

“ (Signed.) GEORGE P. WHITNEY.

“ Witness:

“ Margaret Whitney.”

The Appellate Division held that the writing did not constitute an assignment and that there was no authority in the surrogate to direct payment of the amount.

P. C. Dugan for appellant.

John A. Delehanty for respondent.

Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.