In re Dunscomb's Will — 10 N.Y.S. 247

Majority

p. 247

In re Dunscomb’s Will.

(Supreme Court, General Term, Second Department.

May 5, 1890.)

Headnote

Wills—Payment of Legacies.

An affidavit which fully states the facts, filed with a notice of a motion to require the administrator to pay a legacy, is a sufficient “petition” to authorize a citation, as prescribed by Code Civil Proc. ü. Y. §§ 3717, 3718, prescribing the procedure to compel payment of legacies.

Appeal from surrogate’s court, Kings county.

The application of Alexander T. Cole, as administrator of Eva Cole, to compel the executors under the will of Eliza Dunscomb to pay to him a legacy bequeathed to his intestate by said Eliza Dunscomb, was dismissed with $10 costs, and he appeals.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Martin E. Halpin, for appellants. H. Hendrickson, for respondent.

Alexander T. Cole, as administrator of the estate of Eva -Cole, made a motion in the surrogate’s court based upon an affidavit stating that Eliza Dunscomb by her will made a bequest of $200 to Eva Cole; that the Dunscomb will had been proven on .the 5th day of February, 1887, and that the estate had the money with which to pay the legacy; that the executors of the Dunscomb will refused to pay the same on a personal-request made to them by the Cole administrator. There was no opposing affidavit. The court denied the motion upon the ground, apparently, that the application should have been by petition and citation. This is the correct method of procedure. Code Civil Proc. §§ 2717, 2718. The affidavit which accompanied the notice of motion was sufficient as a petition to authorize a citation. The ■notice of motion did no harm. The affidavit, after stating the facts, asked for such relief as the affiant was entitled to upon the facts stated. The order •should therefore be reversed, and the proceeding remitted to the surrogate for further action, without costs on this appeal. All concur.