In re the Real Estate of Hearman — 34 N.Y. St. Rep. 231

Majority

p. 231

In the Matter of the real estate of Peter D. Hearman, Deceased.

(Supreme Court, General Term, Third Department,

Filed November 28, 1890.)

Headnote

Executors and administrators—Sale or real estate.

The hearing on a proceeding for the sale of a decedent’s real estate was reopened on application of a claimant, and new evidence taken in relation to the claim on notice to the attorney for the executors; but no notice was served on the attorney who had appeared for the devisees. Held, error; that the right of the devisees to contest the validity of the claim was thus impaired.

Appeal from the decree of the surrogate of Rensselaer county, opening the hearing after the matter had been submitted, and taking further testimony, and from the decree allowing the claim of Jacob H. Snyder against the estate. The devisees appeal.

B. Bl. McOlellan, for app’lts ; Orin Gambell, forresp’t.

Proceedings were instituted before the surrogate by the executor to obtain the proper order or decree to lease, mortgage or sell the real estate of the deceased for the payment of his debts. The proper parties were cited and appeared and several hearings had. The claim of Jacob H. Snyder upon a note alleged to have been given him by the deceased was contested by the executor and the devisees. McClellan & McClellan appeared for the executor, Mr. Gr. H. Hearman appeared for the devisees, these appellants. One of the defences to the note was the statute of limitations. December 16, 1889, the matter was submitted to the surrogate for decision upon the evidence. The surrogate’s term of office expired December 31, 1889. December 30, 1889, upon the affidavit of the attorney of the claimant Snyder that further material evidence in his favor had been discovered, the surrogate granted an order requiring “ McClellan & McClellan, attorneys for the executors, devisees and other persons interested in the estate of the said Peter D. Hearman” to show cause at the surrogate’s court to be held, etc., December 31,1889, at 12 o’clock noon, why the hearing should not be re-oper.ed for the purpose of introducing further testimony upon the part of said Jacob H.

p. 232

Snyder. The order was served upon McClellan & McClellan but not upon Mr. Hearman, who had appeared for the devisees. Mr. McClellan appeared before the surrogate’s court upon the return day and in behalf of the executorr made sundry objections to reopening the case. The surrogate decided to re-open the case, whereupon Mr. McClellan withdrew. The surrogate then received additional testimony and thereafter made an order allowing the claim of Snyder and made an interlocutory order establishing the debts and providing for an appraisal of the real estate preliminary to the final order in the premises. The devisees excepted.

It thus appears that the case was re-opened and new testimony was received to support Snyder’s claim, without notice to the devisees or their attorney. Their right to contest the validity of this claim, Code Civ. Pro., § 2755, was thus impaired.

The order and decree are reversed as against the appellants, with costs to them against Snyder, and the case is sent back to the surrogate’s court for a new trial of the claim and for such further proceedings as may be proper.

Learned, P. J.jand Math am, J., concur.