In re Cohen — 59 N.Y. St. Rep. 765

Majority

p. 765

In the Matter of the Application of Maurice S. Cohen, for a Judicial Settlement of the Accounts of Sewanee M. Stevenson et al., as Executors, etc.

(Supreme Court, General Term, First Department,

Filed April 13, 1894.)

Headnote

1. Bxectjtoks—Claim against estate—Dismissal op petition.

Under § 2727 of the Code, the surrogate’s discretion is not exhausted by the issuance of a citation, but he- may thereafter dismiss the proceeding.

p. 766

3. Same.

The petitioner must show that he is a creditor, having an admitted or established claim, before he can, as a matter of right, require a judicial settlement.

The state of the record was held, in this case, not to authorize a legal conclusion that the claim had, by the acquiescence of the executors, become a liquidated and undisputed debt against the estate.

Appeal by a creditor from a denial of an application for a judicial settlement of accounts.

Rastus S. Ransom, for app’lt; William G. McOrea, for resp’t.

The purpose of the appellant was evidently to file a petition which would authorize a decree under §§ 2722 and 2725, or under §§ 2726 and 2727, of the Code of Civil Procedure. It is not necessary now to determine whether the remedies provided by these sections can be united and prosecuted in a single proceeding. Section 2722 provides :

“In either of the following cases a petition maybe presented to the surrogate’s court, praying for a decree directing an executor or administrator to pay the petitioner’s claim, and that he íce cited to show cause why such a decree should not be made: (1) By a creditor, for the payment of a debt, or of its just proportional part, at any time after six months have expired since letters were granted. * * * On the presentation of such petition, the surrogate must issue a citation accordingly; and on the return thereof, he must make such. a decree in the premises as justice requires. But in either of the following cases the decree ftiust dismiss the petitioner without prejudice to an action or an accounting, in behalf of the petitioner: (1) When an executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality, absolutely, or on information and belief. * * *”

Section 2725 of the Code of Civil Procedure contains the following, among other provisions:

“ In either of the following cases, the surrogate may, in his discretion, make an order requiring an executor or administrator to render an intermediate account: * * * (3) On the return of a citation issued on the petition of a creditor, * * * praying for a decree directing payment thereof as described in § 2722 of this act. (4) Where eighteen months have elapsed since letters were issued and no special proceeding, on a petition for a judicial settlement of the executor’s or administrator’s account is pending.”

It will be observed that, by this section, it is discretionary with the surrogate’s court whether, on the return of a citation issued on the petition of a creditor, it will make an order requiring a representative to render an intermediate account. The nature of the petitioner’s claim, or how it arose, is not set forth in the petition, but it is stated in the verified claim to be for professional services and disbursements. But the claim is not made a part of the peti

p. 767

tion. The respondents, by their answer, denied that the services rendered were of the value of $1,523.63, and denied that the ex-exutors ever conceded or admitted the claim, and alleged that, when it was presented, it was duly rejected by them. The appellant states in his affidavit of January 8, 1894, that when he asked for payment of the claim, one of the executors replied that, in his opinion, the bill was too large. This state of the record does not authorize a legal conclusion that the claim had, by the acquiescence of the executors, become a liquidated and undisputed debt against the estate.

It is also urged that the answer is insufficient because it fails to set forth facts which show it to be doubtful whether the claim is valid and legal. The sufficiency of the answer must be determined with reference to the allegations in the petition, which, it will be observed, set forth no facts constituting a cause of action, except that the petitioner’s claim for $1,523.63 had been presented and not rejected, and had become a liquidated debt against the estate, which is explicitly denied in the answer, and it is averred therein that the claim was rejected when presented. This answer is clearly sufficient to put in issue every allegation contained in the petition, and, in so far as it was founded on §§ 2722 and 2725, it was the duty of the surrogate’s court to dismiss it, as, in its discretion. it was authorized to do. § 2725.

Was it error to dismiss the petition, in so far as relief was sought by it under §§ 2726 and 2727 ? which provide:

“Sec. 2726. In either of the following cases, the surrogate’s court may, from time to time, compel a judicial settlement of the account of an executor or administrator. (1) Where one year has expired since letters were issued to him. * * * Sec. 2727. A petition, praying for the judicial settlement of an account, and that the executor or administrator be cited to show cause why he should not render and settle his account, may be presented in a case prescribed in the last section by a creditor. * * * On the presentation of such a petition, a citation must be issued accordingly ; except that in a case specified in subdivision first of the last section, if the petition is presented within eighteen months after letters were issued to the executor or administrator, the surrogate may entertain or decline to entertain it, in his discretion.”

It is urged that, because the surrogate’s court issued a citation on the petition, it had exhausted its discretion, and could not thereafter exercise further discretion, and dismiss the proceeding. This contention is not well founded. Such a limitation of the powers of the surrogate’s court would require it to entertain a petition for a judicial settlement on the mere allegation of the petitioner that he was a creditor, though such allegation was denied in the answer. The discretion vested in the court may be exercised whenever it appears that the validity of the petitioner’s claim has not been conceded or established.

It is also urged that the answer filed by the respondents did not allege that 18 months had not passed since letters testamentary were issued. This fact affirmatively appears by the petition, and

p. 768

it was unnecessary for the respondents to aver it. In case a year has elapsed since letters were issued to a representative, the surrogate’s court has power, on its own motion, with or without a petition, to.' require from the representative a judicial settlement of his account. Code Civ. Proc. § 2626 ; Anon., 14 Civ. Proc. R. 38; 14 St. Rep. 490 . And if, ‘in the case at bar, the letters having been issued more than a year, such an order had been granted, the fact that the petitioner was not a creditor having an established claim would not have been a ground for reversal of the order. In re Cowdrey, 5 Dem. Sur. 453; 8 St. Rep. 774 , and Re Callahan, 66 Hun, 118 ; 49 St. Rep. 425 , more than 18 months had elapsed since letters i were issued to the representatives, and the surrogate’s court had power, with or without a petition or suggestion from any one, to require a judicial settlement of the accounts of the representatives. The petitioner must show that he is a creditor having an admitted or established claim, before he can, as a matter of right, require a judicial settlement. We think the surrogate’s court acted within the discretionary powers conferred on it by the Code of Civil Procedure, and its decree should be affirmed, with costs.

All concur.

Cases cited

In re Cowdrey 5 Dem. Sur. 453 N.Y. Sur. Ct. p. 768