Hyperlawhypertext legal databasebeta In re Waring 28 N.Y.S. 393

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In re Waring

28 N.Y.S. 393 Court N.Y. Sur. Ct. English

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p. 393
(7 Misc. Rep. 502.)
In re WARING et al.
(Surrogate’s Court, Westchester County.
March, 1894.)

Headnote

Executors and Administrators—Executions.
Where a decree for the payment of money is rendered against executors on an accounting, execution cannot issue against the property of testator, but must run against the property of the executors.
Proceeding by Ann M. Paddock and Phebe B. Rockwell to.compel an accounting by Oscar Waring and Wilbur F. Washburn, as executors of Jarvis A. Waring, deceased. A decree was made, directing payment of $6,802.55 to each petitioner, and executions were issued thereon against the property of Jarvis A. Waring, deceased.
F. X. Donoghue, for the motion.
James M. Hunt, opposed.

The executions are clearly void, and should be set aside. They should have run against the property of Oscar Waring and Wilbur F. Washburn, and not against the property of the estate. Section 2554 of the Code permits execution to be issued against the property of the party directed to make the payment The next section authorizes, in a proper case, the surrogate to punish the party for contempt, for not making the payment as decreed. That, of course, would be a proceeding against his own person. In Peyser v. Wendt, 2 Dem. Sur. 221, the surrogate of New York took the view that the execution was properly issued against the property of the executor, and cited authorities on the subject. The court of appeals has held the same in Power v. Speckman, 126 N. Y. 354 -359, 27 N.

p. 394
in Redf. Pr. (5th Ed.) 1009, substituting, however, the letters “Y. Z” for “A. B.,” in last clause. The executions must therefore be set aside, and all proceedings under them, consequently, fall. Motion granted.

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