In re Jacobs — 96 N.Y.S. 133

Majority

p. 133

(109 App. Div. 293.)

In re JACOBS.

(Supreme Court, Appellate Division, Second Department

November 24, 1905.)

Headnote

1. Executors and Administrators—Claims against Estate—Jurisdiction of Surrogate.

The surrogate has jurisdiction to pass upon the question whether a claim presented against an estate has ever been rejected by the executor.

2. Same—Disputed Claims—Silence of Executor.

The silence of an executor during the period intervening the filing of a claim against the estate and the filing of his accounts does not preclude him from disputing the claim.

3. Same—Executor’s Decision on Claims—Communication to Claimant’s Attorney.

An executor is justified in assuming, in the absence of any thing to the contrary, that his decision as to a claim presented against the estate will be communicated to the attorney for the claimant.'

p. 134

4. Same—Necessity op AYritixo.

The decision oí an execul or on a claim against the estate need not be in writing, or in any particular form.

Appeal from Surrogate’s Court, Kings County.

In the matter of the judicial settlement of the account of Samuel Jacobs, as executor of the last will and testament of Yetta Jacobs, deceased. From a decree ordering the payment of a certain claim, the executor appeals. '

Reversed.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, RICH, and MILLER, JJ.

Mitchell May, for appellant.

R. M. Cahoone, for respondent.

I am of opinion that the allowance of the claim was error. Certainly the oral communication of the executor to Mr. O’Mally, then the attorney for the claimant, does not make for'the allowance of the claim by the executor. If we disregard that communication, it then appears that the executor made no sign after the claim was presented until he filed his accounts, wherein he scheduled the claim as disputed. On the hearing of the objections filed by the claimant,.the executor stated in open court that he would enter into a written stipulation, submitting the merits of the claim to the surrogate, or permitting the same to be otherwise tried. But the learned surrogate determined that the claim had never been rejected, and therefore it was allowed. While the surrogate has jurisdiction to pass upon that question (Matter of Miles, 170 N. Y. 75 , 62 N. E. 1084 ), I think that the determination was wrong. Aside from the dealings with Mr. O’Mally, which could not, in any event, avail the claimant, such determination was necessarily based upon the failure of the executor to make any sign during the period intervening the filing o'f the claim and the filing of the accounts, and the disposition of the claim in the account, and the attitude of the executor upon the hearing of the claimant’s objections to the account. But, first, the silence of the executor after the filing of the claim did not conclude him. The doctrine that the lapse of a reasonable time without objection made transforms an account rendered into an account stated has a much more restricted application when the claimant deals with an executor, and the Court of Appeals refused to apply it when similar inaction of an executor followed the presentation of a claim; observing, also, that the creditor must see to it that the claim is admitted or allowed, or else commence an action. Schutz v. Morette, 146 N. Y. 137 , 40 N. E. 780 . See, too, Matter of Callahan, 152 N. Y. 320 , 325, 46 N. E. 486 . Second, as to the account itself, it appears that the executor scheduled this claim as- disputed. And, third, on the hearing of the objections, the attitude of the executor was that of a disputant or rejector of the claim.

I am far from prepared to hold that the communication of the executor to Mr. O’Mally, if established, was not sufficient to show that the claim was then disputed or rejected; for if Mr. O’Mally, as attorney for the claimant, had authority to present the claim, which is not now questioned, then I think that such authority,-in the absence of aught to the contrary, justified the executor in assuming that his decision as

p. 135

to the claim would be communicated to the attorney. Lockwood v. Dillenbeck, 104 App. Div. 71 , 93 N. Y. Supp. 321 And I know of nc principle or rule, and am cited to none, which requires that the decision of the executor should be in writing, or in any particular form. Jessup’s Surr. Prac. (2d Ed.) p. 1033.

The decree, so far as appealed from, must be set aside, with costs. All concur.

Cases cited

In re the Estate of Miles 170 N. Y. 75 N.Y. 1902-02-25 p. 134
Schutz v. Morette 146 N. Y. 137 N.Y. 1895-05-21 p. 134
In re the Estate of Callahan 152 N. Y. 320 N.Y. 1897-03-23 at 325, 46 p. 134