In re the Estate of Colwell — 15 N.Y. St. Rep. 742

Majority

p. 742

Matter of the Estate of Lewis Colwell.

(Surrogate's Court, New York County,

Filed March 5, 1888.)

Headnote

1. Assets—What abe—Debt due from legatee to testator is satisfaction of legacy pro tanto.

A debt due the testator from one to whom he has given a legacy is an asset of the estate in the hands of the legatee, and is, to the extent of such asset a satisfaction of the legacy.

2. Debts from "legatee to testator—Validity of cannot be tried by surrogate’s court.

Upon a dispute as to the validity of the indebtedness the surrogate's court has no power to decide the controversy or to gainsay the correctness of the position of the executors that it is valid. The objecting party may have the question in another court.

Gray & Davenport, for executor; Wm. G. Choate, for T. Martin; Geo. W. Van Sicklen, for Sarah J. Willett and Chas. G. Colwell:

—The provision for the reservation of part of the funds distributable to the assignee of the legatee, who, it is claimed, was. indebted to the testator, which the executors ask to have inserted in the decree to be entered herein, may be incorporated therein. Neither the report of the referee nor the decision of my predecessor, by whom the report was confirmed, makes any reference to this particular question. They recognize the propriety of the inclusion in the account of the claim, but not the insertion in the decree of a provision for its payment. This treatment of the claim resulted obviously from the inability of the court to pass upon its validity. Of such inability there can be no doubt. Tucker v. Tucker, 4 Keyes, 136; Greene v. Day, 1 Dem., 45 .

The disposition which might otherwise properly be made of it was doubtless intended to be left to be provided for by the decree. That disposition, I am satisfied, should be such as I have above indicated. The law regards a debt due the testator from one to whom he has given a legacy, as an asset of the estate in the hands of the legatee, and as a satisfaction, to the extent of such asset of the legacy. Clarke v. Bogardus, 12 Wend., 69 ; Matter of Bogart, 28 Hun, 468 ; Rogers v Murdock, 45 id., 32; Smith v. Murray, 1 Dem., 35 ; Rudd v. Rudd, 4 id., 335.

The executors insist that the claim in question is a valid and existing indebtedness, and that they have a right to satisfy it out of the legacy given to the alleged debtor. This is disputed by the assignee of the legatee. The court is powerless to decide this controversy or to gainsay the correctness of the position taken by the executors. Under the circumstances, and considering that the legacy exceeds

p. 743

in amount the alleged indebtedness, it is hardly to be expected that the executors would be required to appeal to another tribunal to settle the dispute, even if they had the right to do so, which is not entirely clear. Of the right of the objectant to make such appeal there can be no doubt. She would, therefore, seem to be the proper person to make it.