Worrall v. Driggs — 1 Redf. 449

Majority

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New York County — HON. CHARLES P. DALY, Acting Surrogate

December, 1862.

Worrall v. Driggs. In the Matter of the Accounting of the Executor of Phebe Driggs, deceased.

Headnote

A receiver of the " debts, property, equitable interests,” &c., of the executor appointed in proceedings supplementary to an execution, has not such

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an interest in the estate of the deceased as entitles him to an accounting by the judgment-debtor, as executor.

The interest of the executor in the assets of the estate is not vested until an accounting is had, so as to be subject to the lien of an execution.

One Penehard recovered a judgment against Chester Driggs, and on the return on the execution unsatisfied, and an examination of the judgment-debtor in supplementary proceedings, Lawrence Worrall was appointed the receiver of “ all the debts, property, equitable interests, and things in action” of the judgment-debtor.

The receiver applied to the surrogate to compel said Driggs, the judgment-debtor, to render an account of his proceedings as the executor of the last will and testament of Phebe Driggs, alleging that the executor had never accounted to the surrogate, though over two years had elapsed since the issuing of letters. The receiver sought by this proceeding to ascertain the amount of the executor’s commissions already earned, and to appropriate any surplus thereof, after satisfying all prior equities of the estate against the executor.

It was contended, on behalf of the executor, that the receiver had not such an interest in the estate as entitled him to an accounting.

Horatio F. Averill, for the Receiver.

I. Even a contingent interest in the estate is sufficient to entitle the party having such interest to an order that the executor or administrator render an account. ( 1 Barb. Ch., 489 .) The receiver, who makes the application, is vested “ with the debts, property, equitable interests, and things in action” of the judgment-debtor, without a special assignment. (People v. Hulbut, 1 Code R, N. S., 75; Porter v. Williams, Id., 144; 5 How. Pr., 441 ; 12 Id., 107; 25 Barb., 662 ; 5 Seld., 142.)

II. The interest of the executor (to whose rights the receiver here is subrogated) in the assets of the estate is vested, and can be ascertained to a certainty by an accounting. (1.) It is like the claim of a judgment-debtor to a division of the

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partnership profits, which claim is a “ chose in action,” and a lien attaches by supplementary proceedings. ( 25 Barb., 662 ; 2 Kent’s Com., 437; 4 Den., 80 ; Chitty’s Eq. Dig., in verba; 1 Parsons’ Cont., 192.) (2.) ISTo hardship will be done to the legatees; the equitable rights of all will be preserved as between the executors and legatees; but if there be a surplus of commissions after satisfying all prior equities of the estate against the executor, the creditor of the executor here should he entitled to the aid of equity to reach the surplus and appropriate it. It would he so in the case of a creditor of a separate partner. (Eager v. Price, 2 Paige, 333.)

John Sessions, for the Executor.

The Surrogate. — I must decide that the receiver has not such an interest in the estate as will entitle him to an accounting by the executor.

The commissions due the executor from the estate not having been ascertained, on a proper accounting, it cannot be said that there is any thing due him from the estate.