In re the Final Judicial Settlement of the Account of McComb

Majority

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In the Matter of the Final Judicial Settlement of the Account of John McComb, et al. Executors, etc,, of James Shannon, Deceased.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

1. Will—Estate liable for debts of testator.

The estate of a testator, whether personal or real, is under all circumstances liable for debts contracted by the deceased during his lifetime, without regard to any disposition which he may make of his property by his last will and testament.

2. Same—Operates only on what is left after all just debts are paid.

A will operates only upon such property as the testator has, or upon such as remains subject to its provisions after the payment and satisfaction of all just debts of the testator, and he can make disposition of nothing more than he actually owns.

Appeal from an order of the surrogate of Kings county, overrulling certain objections to the account of the executors, and directing the payment of a certain claim.

Alexander H. Van Cott, guardian ad litem; Smith Woodward & Buchley, for executors of John Shannon; Adrian Van Sinderen, for executors of Abraham B. Baylis; Alexis C. Smith, for James Shannon; J. M. & A. H. Van Cott, for Elizabeth Shannon.

This is an appeal from an order of the surrogate of Kings county, overruling certain objections to the accounts of the executors, and directing payment of the general debt out of the proceeds of property sold by them under a power contained in the testator’s will. The executors having presented a petition for a judicial settlement of their accounts, certain creditors were cited to appear, and attend upon such accounting; and the executors of the last will and testament of Abram B. Baylis, interposed a claim against the estate of James Shannon, deceased, for the sum of $4,000; and- the surrogate made a decree for its payment out of the moneys in the hands of the executors arising from the sale of the real estate of the deceased.

The claim of the executors of Baylis was undisputed, and the only question involved on this appeal is, whether under the circumstances the surrogate had power to decree the

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payment to the executors of Baylis of the principal of the said indebtedness.

The estate of the testator, whether personal or real, was under all circumstances liable for debts contracted by the deceased during his life-time, without regard to any disposition which he may have made of his property by his last will and testament. A will operates only upon such property as the testator has, or upon such as remains subject to its provisions after the payment and satisfaction of all just debts of the testator, and he can make disposition of nothing more than he actually owns.

It seems to be_, therefore, unnecessary to decide many of the questions raised by the appellant upon this appeal, and our conclusion is that the decree should be affirmed with costs.

Barnard, P. J., and Pratt, J., concur.