Palmer v. Green — 43 N.Y. St. Rep. 86

Majority

p. 86

Amy C. Palmer, App’lt, v. Eleazer Green, Jr., et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

Heirs—Action for distributive share.

An action cannot be maintained by one of the next of Kin of an infesta'e against the others to recover his distributive share of the personal estate in their hands; but an administrator should be appointed to recover the same and make proper distribution.

Appeal from the judgment of the supreme court entered in the office of the clerk of the county of Chautauqua on the 15th day of May, 1891, dismissing the .plaintiff’s complaint, without, costa

Walter L. Sessions, for app’lt; F. W. Stevens, for resp’ts.

The plaintiff’s complaint is quite voluminous, but. its material allegations are very briéf; they are as follows:

Mrs. Sylvina Green died in the county of Chautauqua intestate on or about the month of March, 1888, leaving her surviving, as. her only children and heirs at law, the plaintiff and the defendants, Bleazer Green, Jr., and Broughton W. Green, the defendant, Mary Green, being the wife of Eleazer, Jr. That previous to- and at the time of Sylvina’s death, the defendant, Bleazer, had in his possession a large amount of money and personal property belonging to his mother, Sylvina.

That he had not made any distribution of the said estate in his-hands and that the plaintiff, as the next of kin of her mother, claims to be entitled to a distributive share of said estate and that. Eleazer had refused to pay it to plaintiff.

There are allegations in the complaint concerning the acts and conduct of the other defendants, but it is not necessary to state them, for if the plaintiff’s complaint fails to state a cause of action against Bleazer, it will not be claimed that it states a case against the other defendants.

The' allegations of this complaint that the defendant, Bleazer, . was the executor of his father’s estate, that he accounted as such in the surrogate’s court, that his accounts were settled and that he was by decree discharged as such .executor, are not material.

The defendants’ answers put in issue all the material allegations of the complaint.

The plaintiff’s counsel in opening his case to the referee stated 'that he claimed to recover a money judgment only against the defendants for the distributive share of plaintiff in the personal estate of her mother, Sylvina Green, deceased, which he claimed was in the possession of the defendants, and further stated that such was the construction he claimed should be given to the plaintiff’s complaint.

The referee, thereupon, on motion of the counsel for the defendants, dismissed the plaintiff’s complaint, without costs. .

The defendants were not liable to account to the plaintiff as one--of the next of kin of the mother.

The proper course for the plaintiff to have taken was to procure the appointment of an administrator of her mother’s estate.

p. 87

The administrator could then institute an action against the deiendants to recover the entire property in their hands belonging to the estate, and then a proper distribution thereof would be made pursuant to the provisions of law in such cases. Muir v. The Trustees, etc., 3 Barb. Ch., 477 ; Dayton on Surrogates, 211.

Had plaintiff succeeded in her action, and obtained her alleged share of the estate, she would be obliged to account to an administrator, when one should be appointed, for the money received.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.