In re Hastings' Estate — 2 N.Y.S. 22

Majority

p. 22

In re Hastings’ Estate.

(Surrogate’s Court, New York County.

May 23, 1888.)

Headnote

Executors and Administrators—Probate Practice—Discovery of Property.

Under Code Civil Proc. N. Y. § 2710, providing that in case a person cited to answer concerning the whereabouts of personal property of a deceased person “shall interpose a written answer, duly verified, that he is the owner of said property, or is entitled to the possession thereof by virtue of any lien thereon, or special property therein, the surrogate shall dismiss the proceedings as to such property so claimed, ” an answer to a petition by an executrix for such citation, which alleges that the only property in respondent’s possession was and is certain ornaments given to respondent by testator, who was engaged to be married to respondent; that the same is her own property, in which the executrix has no title or interest; and that respondent has no property of any kind belonging to testator’s estate,—is insufficient to entitle respondent to dismissal of the proceeding.

On application for an order directing respondent to answer concerning certain personal property of testator.

E. A. S. Mann, for petitioner. Abram Kling, (Charles E. O’Connor, of counsel,) for respondent.

Tins is an application, under section 2706, by executrix of deceased, for an order directing respondent to submit to an examination as-to the whereabouts of certain personal property of deceased. The personal, property which is sought is described at lengthin thepetition. The respondent obtained an order for executrix to show cause why the proceeding should nets be vacated, and filed an answer to the petition; alleging that the only chattels or property of any kind in the possession of this respondent were and are such ornaments which were, preceding the death of said Ernest Hastings, given to this respondent by said decedent, who was at said time engaged to be married to this respondent, and that the same is her own property; and that the said Edith Hastings, as executrix, has no title or interest therein; and that she has no books or papers or property of any kind belonging to said estate of Ernest Hastings. The Code provides, (section 2710:) “In case the person so cited shall interpose a written answer, duly verified, that he is the owner of said property, or is entitled to the possession thereof by virtue of any lien thereon or special property therein, the surrogate shall dismiss the proceedings as to such property so claimed.”

I do not think the answer interposed by respondent is sufficient. It is too general. She does not allege that she is the owner or is entitled to the possession of the specific property described in the petition by virtue of any lien¡ thereon, or special property therein; and the allegation that she has no books- or papers or property of any kind belonging to the decedent’s estate would not be sufficient to dismiss the petitioner’s proceeding; for, in order to do this,, it must appear in the answer that the respondent has possession of the specific property described in the petition, but is the owner of it. The motion for discovery is granted. The motion to vacate and set aside order and citation. for the examination of respondent is denied.