Claim of Hampton v. Estate of Stoehr — 51 N.Y. St. Rep. 560

Majority

p. 560

In the Matter of the Claim of J. C. Hampton v. The Estate of Bertha Stoehr, a Minor.

(Surrogates Court, Orange County,

Filed February 1, 1893.)

Headnote

Infants — Surrooate’s court.

The Surrogate’s court has no power to settle and determine disputed claims

p. 561

against an infant’s estate for moneys and services alleged to have heen expended and rendered in the care of the infant’s property.

Proceeding to compel payment by a general guardian of a claim for services rendered by a guardian ad litem in litigations resulting in securing the property now held by said guardian.

John R. Devany, for petitioner; George G. Keeler, for guardian.

This is a proceeding to compel a general guardian to pay an alleged claim for services rendered and expenses incurred by the petitioner as guardian ad litem of the minor in certain litigations which resulted in securing the property now in the control of the general guardian.

The general guardian, by her answer, disputes and denies the justness and validity of this claim.

It is well settled that the surrogate’s court has no power to hear and determine the validity of a disputed demand against an estate of a deceased person except when made by executors or administrators. And there seems to be the same lack of statutory power to determine as to claims against the estate of minors, except as it may be given by §§ 2846 and 2472, subd. 7, which are hereinafter referred to.

In the case of Welch v. Gallagher, 2 Dem. 40 , it was held that the surrogate’s court had no power to determine a disputed claim for board and apparel of an infant.

In the Matter of Kerwin, 37 St. Rep., 436 , it was held by the general term, fifth department, that § 2846, above mentioned, gave the surrogate’s court power to determine controversies upon demands for support of minors; and under § 2472 to compel the payment and delivery of money or other property belonging to wards, and in cases specially prescribed by law to control the conduct of guardians. That was a proceeding to compel the guardian of the property to pay a third person an amount owing for the support of the minor under an agreement made with the guardian of the person; and it was there decided thatdt was the duty of the surrogate in that particular instance to inquire into the matter and grant or refuse the petitioner’s application upon the merits. It will be noted that the circumstances “in this particular instance ” were peculiar, and it very far from establishes the general principle that the surrogate’s court is given, by the sections referred to, the general power to determine all disputed claims against a minor’s estate.

By § 2472, subd. 7, the surrogate is given the power to compel a guardian to pay over money and deliver property belonging to his ward; such payment or delivery must, however, of necessity be made to a party having an established right thereto in some tribunal having authority to establish that right; and the surrogate may thereby also control the conduct of guardians, but only in cases specially prescribed by law; and there surely is no law requiring a guardian to pay a claim which he disputes until that claim has been properly adjudicated.

The demand of the petitioner in this case is not for the “ sup

p. 562

port and education of the infant,” but is for money and services alleged to have been expended and rendered in the care of the infant’s property. Whether this was so done this court is not given the power to settle and determine, and these proceedings will, therefore, be dismissed, but without costs.