In re Freije's Estate — 152 N.Y.S. 726

Majority

p. 726

In re FREIJE’S ESTATE.

(Surrogate’s Court, New York County.

April 9, 1915.)

Headnote

EXecutobs and Administbatobs ©=471—Settlement of Account—“Ceeditobs of Decedent’s Estate”—Statute.

Under Code Civ. Proc. § 2768, subd. 3, defining “creditors of a decedent’s estate” as including every person having a claim or demand upon which a judgment for a sum of money could be recovered, and under Code Civ. Proc. § 449, providing that every action must be prosecuted in the name of the real party in interest, where creditors of a decedent did not present their claims, but assigned them to another person before the account of the administratrix was filed, they were not such creditors of the estate as must be cited to attend the judicial settlement of the account of the administratrix, under Code Civ. Proc. § 2730, providing that upon the judicial settlement of such account all creditors or persons claiming to be creditors must be cited, except such as by vouchers filed with the account appear to have been paid.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 2018-2024; Dec. Dig. ©=471.]

Proceedings upon the settlement of a decree presented by the administratrix of the estate of Kalil Freije. Decree signed.

Adolphus D. Pape, of New York City, for petitioner.

Strouse & Strauss, of New York City, for M. & C. Mayer.

Warren C. Fielding, of New York City, special guardian.

The question which arises upon the settlement of the decree presented by the administratrix is whether creditors who not present their claims for admission or rejection, but who assigned them to another person before the account of the administratrix was filed, should be cited to attend the settlement of the account. Section 2730, C. C. P., provides that upon the judicial settlement of the account of an executor or administrator all creditors or persons claiming to be creditors of the decedent, except such as by vouchers filed with the account appear to have been paid, must be cited. Subdivision 3 of section 2768, C. C. P., defines “creditor” as including every person having a claim or demand upon which a judgment for a sum of money could be recovered in an action. A person who has assigned his claim against a decedent cannot after such assignment recover judgment upon the claim, as an action upon such claim could only be brought in the name of the real party in interest, namely, the assignee. Section 449, C. C. P.

Therefore the assignor of such a claim is not a creditor of the estate and need not be cited to attend the judicial settlement of the account of the legal representative of the decedent. Costs taxed and decree signed.