In re De Forest — 66 N.Y. St. Rep. 844

Majority

p. 844

In the Matter of De Forest.

(Supreme Court, General Term, First Department,

Filed April 11, 1895.)

Headnote

Executors—Accounting.

_ All the creditors, who have presented claims against the estate, must be cited on the accounting. The claim by the executor that he has paid a creditor and presents a voucher therefor, is no excuse for failure to cite, him.

Motion for reargument.

Rastus S. Ransom, for the motion, S. S. Perry, opposed.

The appeal in this matter was taken from an order of the surrogate’s court directing a supplementary citation to all the creditors of the estate, including those whose claims the administratrix claimed to have paid in full. Upon the argument, of this appeal the order of the surrogate was affirmed, and this motion for a reargument is made upon the ground, apparently,, that it has not been the customary practice to cite creditors, upon an accounting, whom the executor or administrator claimed to have paid in full, and for which payment the executor or administrator presents alleged vouchers. It is a familiar rule, upon an accounting to, cite all legatees, whether vouchers for the payment of their legacies are produced or not; and it is difficult to see how there can be any distinction between the case of a legatee of a decedent and that of a creditor of a decedent. Certainly, in the statute where the question of citation is spoken of no such distinction is hinted at. Section 2728 reads as follows :

“In.either of the following cases an executor or administrator-may present to the surrogate’s court his account and a written-petition duly verified praying that.his account may be judicially-settled ; and that the sureties in his official bond or the legal representatives of such surety and creditors or persons claiming-to be the creditors of the decedent and the decedent’s husband or wife, next of kin and legatees if any, or if either of these persons is dead his executor or administrator if any, may be cited to attend the settlement.

The right to this accounting depends upon the lapse of one year,' and the publication of a notice to creditors. The surrogate, upon the presentation of such a petition, must issue the citation accordingly. And there is a further provision that a creditor or a person-interested in the estate, although not cited, is entitled to appear at the hearing, and thus make himself a party to the proceeding. It would seem, therefore, that it'was in contemplation of the statute that all creditors of the decedent should be cited, and, if they are dead, their executors or administrators, if any there be. It may well be that where a creditor has not presented liis claim, and has not thereby intervened in the proceeding, he may not be entitled to notice. But having intervened, by the presentation of his claim, it is difficult to see upon what theory he should be ignored in the-subsequent proceedings. It does not seem to be any answer to this-suggestion that the executor claims to have paid the creditor in

p. 845

full, and presents a voucher, because the creditor, if he were allowed an opportunity to do so, might be able to establish that the voucher presented was not his and that he had not been paid. In view of the provision that a creditor or person interested in the estate is entitled to appear on the hearing, and thus make himself a party to the proceeding, although not cited, it may be that the failure to cite the creditor does not oust the court of jurisdiction in respect to the accounting. But it is manifest that it is the better practice, where it is possible, to cite the parties who were interested in the estate at the time of the death of the decedent, unless there is some reason shown why the ordinary course should not be pursued. The argument that it is difficult in many cases to serve a citation upon all creditors, whether they have been paid or not, does not seem to be entitled to a great deal of weight, because, if any obstacles exist which cannot be overcome, undoubtedly service of citation may be dispensed with. The language of the statute does not seem to have made it obligatory upon the surrogate to issue such citation. But, where the surrogate has directed such a citation to issue, this court should not, except in a very plain case, say that it was not a wise exercise of power. Parties, in case they desire, upon the payment of claims, to obviate the necessity of serving citations upon such creditors as they have paid, may very easily take a waiver of citation in the manner provided for by the practice in the surrogate's court. There does not seem, therefore, to be'any reason for a reargument, and the motion should be denied, with $10 costs. •