In re the Estate of Hastings — 16 N.Y. St. Rep. 980

Majority

p. 980

In the Matter of the Estate of Ernest Hastings, Deceased.

(Surrogate’s Court, New York County,

Filed May 23, 1888.)

Headnote

Executors and administrators — Proceedings to discover property — Examination of the person cited —Answer—When sufficient to excuse under Code Civil Pro., § 2710.

An application having been made under Code Civil Pro., § 2706, by the executrix of deceased, for an order directing respondent to submit to an examination as to the whereabouts of certain property of deceased, said property being described at length, in the answer to the petition in proceedings to set aside said order, the respondent alleged, “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 * * * 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.” Held, that the answer interposed was not sufficient, under Code Civil Pro., § 2710. That the motion for discovery should be granted.

p. 981

Abram Kling, for resp’t; Charles E. O’Conner, of counsel; E. A. S. Man, for petitioner.

This is an application under section 2,706, 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 length in the petition. The respondent obtained an order for executrix to show cause why the proceeding should not 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.