In re the Estate of Callahan — 49 N.Y. St. Rep. 425

Majority

p. 425

In the Matter of the Estate of John Callahan, Deceased.

(Supreme Court, General Term, First Department,

Filed November 18, 1892.)

Headnote

Executobs and administbatobs—Accounting.

The petition of a creditor that an executrix be required to account was opposed by the latter in an affidavit which alleged that she was the residuary legatee of the estate; that she was able and willing to pay all just claims due; that she had in fact paid all claims except the petitioner’s, which was in dispute. Held, that the affidavit did not show cause sufficient to require a denial of an application for an accounting.

Appeal from an order of the surrogate of the city and county of JSTew York, directing the appellant to account, and directing its filing on or before May 31, 1892.

Thomas J. McKee, for ex’rx, app’lt; Niles & Johnson (W. W. Niles, Jr., of counsel), for resp’t.

In this proceeding a petition was presented to the surrogate, showing that the executrix of the deceased had not

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filed any account, though more than eighteen months had elapsed since her appointment, and asking that a citation issue requiring the executrix to appear and show cause why she should not render and settle her accounts as such executrix. A citation having been issued, the executrix on the return thereof submitted an affidavit in which she asserted that the petitioner had no valid claim against the estate, and, in support of this allegation, reviewed certain steps taken by the petitioner to establish the validity of the claim. The first of these was an action brought by the petitioner against the deceased in his lifetime which, upon his death, resulted in the substitution of the executrix as defendant in his place and stead, who thereupon interposed her answer denying the petitioner’s right to recover in the action. This action, after issue joined, was, upon the application of the petitioner, discontinued, upon the condition that the petitioner pay the costs.

The executrix further shows that afterwards an action was brought against the auctioneers who sold the property out of which this claim is alleged to have arisen, and that this action after issue joined came on for trial, and a judgment upon the merits was rendered in favor of the auctioneers and against the petitioner. The executrix also' swears that under the will she was made the residuary legatee, and as such took and holds possession of all the property of the estate, and avers her readiness to pay any and all just claims due, and assigns as a reason for not filing an account that all debts due by the deceased have been fully liquidated. She also states that after the disposition of the actions above referred to a claim was presented by the petitioner, which claim was rejected, and that six months have elapsed since such rejection. The answering affidavits dispute the statement made by the executrix with respect to the rejection of the claim; and while the presentation of the claim is conceded, a question upon the conflicting statements was presented as to whether or not it was ever rejected by the executrix. Upon the proceedings thus had, the surrogate made the order directing the executrix to file an account of her proceedings; and from this order the first appeal is taken. Thereafter, upon failure to comply with the terms of this order, an application was made for an order to show cause why a -warrant of attachment should not issue against the executrix, which was granted. In answer to such order to show cause, many of the facts averred in her former affidavit were presented as reasons why an account should not be filed, and the special point was' made that the order of the surrogate requiring her to account had not been served. Upon this motion the surrogate made his decision as follows: “Upon examination, I find the statute does not require service of the order. See § 2727. The account must be filed on or before May 31, 1892, or a warrant of attachment will issue.” No order was entered upon this decision of the surrogate. The appellant, however, assuming that this decision was an order, has appealed therefrom. This last appeal, purporting to be from an order of the surrogate, when no such order, so far as appears, is in existence, must be dismissed, as we are aware of no practice which

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will permit an appeal from an opinion rendered by a surrogate or judge, in the absence of an order, decree, or judgment made thereon, and properly entered. Were the question presented upon this appeal, however, before us, it would be without merit, for the reason that, if the original order directing the executrix to account was proper, the surrogate, upon her failing to comply with the directions contained in the order, would be justified in granting a warrant of attachment. The point relied upon of non-service of the order was correctly disposed of by the surrogate, as will be found by a reading of the section referred to by him, § 2727 Code Civ. Pro., which states: “The executor or administrator is bound by such an order without service thereof.”

This brings us to the main question presented upon this appeal, as to the validity of the order of the surrogate directing the executrix to file an account. As shown by the case of Thomson v. Thomson, 1 Bradf., 26 , the Eevised Statutes authorized the surrogate, of his own motion, to enforce the return of an inventory after three months from the date of letters. 2 E. S. (3d Ed.), 149, § 18. Whether this power still exists in the surrogate it is unnecessary for us to determine, it appearing here that the order was made upon the petition of a creditor, and the authority of the surrogate, under such circumstances, to make the order is expressly conferred by the Code of Civil Procedure, §§ 2724, 2726, 2727. By the latter section, upon a petition being presented by a creditor, the surrogate must make an order directing an account, unless good cause to the contrary is shown. The appellant insists, however, that good cause is shown by reason of the circumstances set forth in the answering affidavit, to the effect that all other claims against the estate have been liquidated, and that she has sufficient moneys in her hands, and stands ready and willing to pay all just debts due; and that the further fact that the petitioner’s claim is disputed is a good reason why she should not be compelled to file an account. Notwithstanding the proceedings resorted to by the petitioner to enforce payment of a claim, which, it would appear, were ineffectual, it is conceded that subsequent thereto the petitioner filed the claim with the executrix; and whether the same was rejected or not, we think, upon the affidavits presented, was undoubtedly and properly resolved by the learned surrogate in the petitioner’s favor. If, however, we were to assume that the claim of the petitioner was in dispute, this would be no reason for denying the application. This question has been directly passed upon by the surrogate’s court in Re Cowdrey, 5 Dem., 453 , wherein it was held that, eighteen months having elapsed since the executrix had obtained letters testamentary, she must be directed to account; and further held that the fact that the petitioner’s claim is in dispute was no ground for denying her application for an accounting. While this decision is in no way controlling upon us, an examination of the reasons for the conclusions reached by the surrogate in that case, and of the authorities relied upon by him, will show that it is well supported.

Upon examining this record, we find no reason to interfere with

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the disposition made by the learned surrogate, and the order appealed from should be affirmed, with costs and disbursements.

Barrett, J., concurs.