Gratacap v. Phyfe adm'r — 6 Sarat. Ch. Sent. 18

Majority

p. 18

Gabriel P. Gratacap et al. v. Robert Phyfe adm’r &c.

T- Reyxolds and O. L. Barbour, for appellants;

K. S and por ir, for respondent

Headnote

Pnvin’e on cali-InreTc' tíren-before" BIUe-

Appeal from a decretal order of the surrogate of New York. The chancellor decided in this case, that an order may be granted by a surrogate, after the expiration of eighteen months from the timo letters of administration are issued, that the executor, or administrator render an account of his proceedings ; either upon the application of a creditor, legatee, or next of kin of the decedent, or such order may be made by the surrogate ex officio, without any such application. But the proceedings are different where the order is made by the surrogate ex-officio, from what they are when it is made upon the application of some person interested, fn the first case it may be sometimes proper for the surrogate to make an absolute order in the first instance ; as it is a matter resting in his discretion whether he will require! an account of the’admiuistration of the estate, although no pcfrson interested thinks proper to institute a suit for that purpose. 'And it is a proper exercise of such discretion for the surrogate to require such an account, ex-ojicio whenever, in his opinion, the rights of minors who are interested in the estate as legatees or next of kin render such an account proper. That on the rendering of such an account if it appears that the executor &e. has money in his hands belonging to infants, lie should notify their guardians or relatives of the fact, so that the fund may be received and properly invested for the benefit of the owners.

But that in the case of an application by or on behalf of a person claiming to be interested in the estate as a creditor, legatee, or next of kin, an absolute order to account should not be made in the first instance, and without notice of the application, to the executor &c. For in such cases tíic right of the applicant to call for an account may bo questioned. That the surrogate, upon the presenting of the petition for an

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account, should direct the executor &c. to be cited to appeal* and show cause, at a specified time, why tin order that he render an account of his proceedings should not be granted ; so as to give him an opportunity to object that the affidavit of of the debt of the applicant is insufficient, or that he is not interested in the estate as a legatee, or as next of kin &e. And the party cited may show, in answer to the application that the right of the applicant to an account is barred by a release or otherwise.

Yet that, as a general rule, if a creditor swears positively to a debt due to him from the decedent he will be entitled to an order for an inventory and account of the estate. A nú the surrogate will not proceed to try the validity of the debt, or the amount thereof, upon a mere application to account; where the petitioner does not pray for the payment of the debt.

That even a contingent interest in the estate is sufficient to entitle the party having it, to an order that the executor &c render an account,

Appeal dismissed, without costs, and without, prejudice to the right of the appellants to institute such suits (or the recovery of the debts claimed by them as they may be advised.