In re Griffith's Estate

Judicial settlement of the accounts of Effie J. Griffith, as administratrix of Charles R. Griffith, who died intestate May 10, 1901. Contestants claim that the administratrix should be charged with the amount of a Supreme Court judgment against her and in favor of her husband, the intestate, as so much money in her hands to be applied to the payment of debts and for distribution. Code, § 2714. This judgment was obtained by confession dated July 9, 1897, and on May 24, 1900, was docketed in the Rensselaer county clerk’s office.

The administratrix sets up three reasons why she should not be charged with the judgment: First, that the judgment was confessed without consideration, at the suggestion of her husband, and is therefore invalid. She desired to offer evidence upon this point, but such evidence was excluded on the ground that the validity of such judgment could not be tried in Surrogate’s Court; the same being regular upon its face. The jurisdiction of the court granting it is not attacked, and therefore the judgment is a judicial settlement of the rights of the parties within the issues involved at its date. The Surrogate’s Court cannot set such judgment aside, but is bound to give it full faith and credit. McNulty v. Hurd, 72 N. Y. 521 ; Matter of Browne, 35 Misc. Rep. 362 , 71 N. Y. Supp. 1034 .

The second objection urged is that the administratrix is financially unable to pay such judgment, and she asked to give evidence to show her inability to malee such payment, which evidence was excluded. The Code (section 2714) says that the executor must be charged with such a debt as so much money in his hands. There is no provision that the Surrogate’s Court can become a bankruptcy court, and determine to what extent an executor is solvent or insolvent. It appears that this administratrix has neither inventoried this judgment, nor sought to enforce it against herself. The regular way to determine whether or not a judgment is collectible is to issue execution upon it, and take such other proceedings as the law has provided. This the creditors and persons interested have not yet had an opportunity to do; and, if this administratrix should be relieved from accounting for the money due upon this judgment, upon such testimony as might be produced in Surrogate’s Court, the parties interested would be deprived of their legal rights. The only method of preserving those rights is to charge the administratrix with the amount due upon this judgment in the decree of judicial settlement; which decree can then be docketed as a judgment in favor of all interested parties, upon which they can take such legal proceedings as will determine in a legal manner whether or not the judgment is collectible. The duty of the surrogate to so charge the executor was distinctly laid down in Baucus v. Stover, 89 N. Y. 1 . It

The administratrix urges, in the third place, that the provisions of the Code (section 2714) do not apply to an administrator, but to an executor only. Two of the cases already cited were cases of administration, and in Matter of Daggett, 1 Misc. Rep. 248 , 22 N. Y. Supp. 911 , it was distinctly held that the section did apply to administration; the surrogate saying that such a rule was as necessary in the one case as in the other to relieve the incongruity of requiring a personal representative to proceed against himself for the collection of .a debt. Let the decree charge the administrator with the amount due upon the judgment.

The widow asks that there be allowed her on this accounting the sum of $180 for necessary provisions for 60 days after the death of her husband. No set-off was made to her in the inventory for such support, although the deceased was the owner of a grocery store, and groceries and provisions were inventoried as general assets qnd sold. The widow proves that she has purchased her own provisions with her own money at an expense of three dollars per day. The deceased had no children, but maintained a home, and for some time one or more of his wife’s relatives had been members of his family, and they continued in the family after his death. It has been held that the widow does not waive her rights to a set-off when the appraisers fail to make it, and that it can be allowed to her upon the final accounting. Matter of Warner, 53 App. Div. 565 , 65 N. Y. Supp. 1022 . The amount allowed should not be restricted to what she might consume personally, for the law recognizes that at such a time the widow ought to have the companionship of relatives or friends. The allowance is granted.

The widow also asks for an allowance of $150, in lieu of the articles provided in subdivision 4 of section 2713, to be set off to her. The inventory made by her sets off, under subdivision 1 of section 2713, one parlor stove and one cook stove, and states that all the remainder of the furniture and household goods are owned by her, and therefore there were no articles described in subdivision 4 belonging to the de

These cases do not sustain the claim of the widow, but there are some recent cases which do. One of them is Matter of Hembury, 37 Misc. Rep. 454 , 75 N. Y. Supp. 933 , where the surrogate of Kings county held that, where the deceased did not leave the articles specified in subdivision 4, the widow was entitled to $150 in money as the value thereof. He cited Matter of Williams, which, as we have seen, does not decide that precise question. Another case is Matter of Hulse, 41 Misc. Rep. 307 , 84 N. Y. Supp. 220 , where the surrogate of Suffolk county allowed a widow $300 as the value of the articles specified in subdivisions 1, 2, 3, and 4; $150 having been previously set off to her under subdivision 5. We are not told in the opinion the rule which the surrogate followed when he made his guess that articles of the nature of those described in subdivisions 1, 2, 3, and 4, and which the deceased did not own, were worth $300. Suppose the deceased did not have “family pictures,” mentioned in subdivision 2, would the widow be allowed thousands of dollars, the reasonable cost of family pictures done in oil, or the few cents that the country tintype would cost? If a man did not own sheep at the time of his death, which might have occurred at the Waldorf Astoria, should not the widow be allowed $5,000 in lieu of 10 sheep, because a man of her husband’s wealth might have owned sheep worth $500 each if.he had owned any at all? It would seem that these and many other questions will arise if the courts

Against these decisions we have Matter of Perry, 38 Misc. Rep. 167 , 77 N. Y. Supp. 271 , where the surrogate of Allegany county refused to order payment of money in lieu of the missing articles, and very pertinently said:

“If the Legislature had intended that the widow should receive their cash equivalent, it would have fixed the amount under such subdivision oí this section that, the widow would receive if she did not take the articles enumerated.”

Again, in Matter of Sprague, 41 Misc. Rep. 608 , 85 N. Y. Supp. 303 , the surrogate of Orleans county refused the application of the widow for a cash equivalent, and called attention to the impossibility of fairly fixing a value upon sheep or a cow that did not exist.

In the case of Baucus v. Stover, 24 Hun, 109 , the surrogate had made a money allowance to the widow in place of ten sheep and two swine that the deceased did not possess, and the General Term of this department held that such allowance was improperly made, although the deceased had a half interest in such animals; the court saying:

“The statute contemplates such an ownership and possession of this property in the deceased or his personal representatives at the time of making up the inventory as will permit their delivery to the widow at least potentially. Here the testator had but a half interest in these animals. They could not be then delivered over to the widow even potentially, and therefore could not be set off to her.”

This case was reversed ( 89 N. Y. 1 ), but the only question argued was an entirely different one.

While the courts should construe the law liberally in the interest of the widow, yet they should not attempt a construction not fairly within the language of the section. If the construction contended for by the widow should be adopted by the surrogates of the state, the personal opinion of each surrogate as to how much a widow should be allowed from the money of her deceased husband would prevail in place of the statute. In estates of $1,500 and under there would be no certainty that there would be any money with which to pay administration expenses or funeral expenses or debts after the surrogate had awarded to the widow a money set-off in lieu of any or all the enumerated articles. No administrator would dare pay out a dollar of the estate, even for funeral expenses, for he would not know how much the surrogate would fix on the final accounting as the allowance to the widow. In all small estates the greatest uncertainty would arise, while by strictly following the statute there would be absolute certainty and safety. The application is denied.

The widow also asks that the gold watch, valued at $20, and the light

Two claims against the estate were rejected, and consents filed to have them tried upon the final settlement, and they have been, so tried.

The claim of George Griffith, for services rendered and materials furnished in shingling the barn of the deceased, is satisfactorily proved, and' is allowed.

The claim of Frank Griffith, for services in nursing his brother in his last illness, and for expenses of help in his own store during that time, is not satisfactorily proved, and is disallowed. .

Let a decree be prepared accordingly.

Decreed accordingly.