In re the Estate of Lydecker — 17 N.Y. St. Rep. 702

Majority

p. 702

In the Matter of the Estate of Jennette Lydecker, Deceased.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

1. Administrator and executor—Disputed claim—When liquidated.

After a claim has been passed by an administrator or executor it becomes a liquidated and undisputed debt.

2. Same—Should object to claim as soon as presented.

In the case in question the administrator, who was entitled to the whole estate, had full knowledge of the basis of the claim, and should have-plainly and at once objected to it it he meant to do so.

3. Same—What evidence sufficient to show claim has been accepted.

This claim was upon a note made by the deceased which, when first presented to the administrator was not disputed, and subsequently he promised to pay, and afterward when the creditor commenced proceeding to compel payment of his debt in the surrogate’s court, it was first alleged that the claim was disputed. Held, there was sufficient to sustain the finding of the surrogate that it was an undisputed claim.

Appeal from so much of the decree entered in the matter of the judicial settlement of the accounts of Smith Lydecker, as administrator of Jennette Lydecker, deceased, as directs that said administrator “pay to John H. Blauvelt, a creditor, the sum of $145.41, the amount of his claim and interest, which is judged to be an undisputed and established claim, together with the sum of $120 for his costs in this proceeding, amounting in all to the sum of $265.41.”

Garrett Z. Snider, for app’lt; Irving Brown, special guardian; Abram A. Demarest, for creditor.

The only question presented by this appeal is whether the claim of John M. Blauvelt against the estate was a disputed claim or not. If it was a disputed claim the surrogate had no authority to decree its payment. The proof is conflicting. There is no doubt but the claim was presented on the 24th of March, 1886, and that no dissent to the claim was made by the administrator. The claim was upon a note made by the deceased. The administrator subsequently promised to pay the note; “he never disputed this claim at any of these convérsations.” “He always promised to pay it.” The administrator never filed any inventory of the estate.

In September, 1886, the creditor commenced proceedings to compel payment of his debt, in the surrogate’s court, and was there met by the allegation that the' claim was disputed. That the note was the note of a married woman, given to pay her husband’s debt. The_ administrator promised to pay the claim after the proceedings were commenced. He was the husband of deceased and entitled to the entire estate.

p. 703

The surrogate dismissed the proceedings and, after the end of eighteen months, the creditor claimed a final accounting.

The administrator avers that the note was given for a judgment against the deceased, and that he thought the judgment debtor had paid the judgment. No proof of this payment was given or offered on the trial. If the claim was really disputed the administrator was not bound to give the proof but as bearing upon the fact, whether it was disputed or not, it would have been proper. The surrogate had the right to determine the fact, and the evidence supports his finding that it was not a diputed one. The first dissent was at the very end of the strict statute of limitations, on the assump tian that the claim is in dispute.

The administrator had a direct personal interest in the claim, and full knowledge of its basis, and should have plainly and at once objected to it.

After the claim has been passed by the administrator it becomes a liquidated and undisputed debt. Lambert v. Craft, 98 N. Y., 342 .

The judgment should be affirmed.

Pratt and Dykman, JJ., concur.