Opinion
Argued January 10, 1908
Decided January 21, 1908
Charles D. Newton and Charles W. Stevens for appellant.
Fletcher C. Peck for respondents.
The plaintiff having duly presented her claim against the estate of the decedent to the executors of his will, and the executors having duly rejected the claim, and in the notice of rejection offered to refer the same, there was open to her three ways, by any one of which she could have proceeded to establish her claim: (1) She could have accepted the executors' offer to refer the same and joined with them in an agreement in writing to refer the matter in controversy to one or more disinterested persons to be approved by the surrogate, and upon filing such agreement and approval in the office of the clerk of the Supreme Court in the county in which the parties or either of them reside an order would have been entered by the clerk referring the matter in controversy to the person or persons so selected (Code Civil Procedure, § 2718). (2) She could have commenced an action for the recovery of the claim against the executors, in which case it was necessary for her to commence the action within six months after the dispute or rejection of the claim (§ 1822). (3) She could within six months after the claim was rejected have filed a written consent with the surrogate that said claim might be heard and determined by him upon a judicial settlement of the account of said executors, as provided in section twenty-seven hundred and forty-three of the Code of Civil Procedure. If a similar consent had been filed by the executors, the surrogate would have obtained jurisdiction so to have heard and determined said claim.
Each of the ways provided for establishing such a claim is independent of the other. Where the claim is referred, upon the entry of an order as stated, the proceeding becomes an action in the Supreme Court (§ 2718). Such simple and summary procedure takes the place of the usual method of commencing an action, forming and serving the pleadings therein, and obtaining when possible the necessary order referring the issues to a referee. It results in a pending action in the Supreme Court, and it is as exclusive of other actions or proceedings as if it were an action commenced by the service of a summons.
If the claim is not referred, or the written consents given as stated, an action for the recovery of the claim must be commenced within six months after the dispute or rejection of the claim, or it will be barred as stated. Where the respective parties file a written consent with the surrogate that the claim be heard and determined by him upon the judicial settlement of the account, it is mutually beneficial to each of the parties consenting thereto. The filing of the consents does not in any way affect the running of the Statute of Limitations except so far as relates to the hearing and determination of the claim by the surrogate. All of the statutory provisions relating to the presentation of claims against the estate of a decedent and for determining their validity and amount are intended to disclose to an executor or administrator information as to the number and character of such claims and the alleged amount of each, and also to furnish a speedy and inexpensive method by which all claims not admitted and allowed by such executor or administrator can be established in whole or in part or wholly barred as a claim against the estate. The authority of the surrogate to hear and determine a disputed or rejected claim upon a judicial settlement of the account of an executor or administrator has been but recently conferred by statute (Laws 1895, chap. 595). Such authority was granted as a further aid in the speedy and inexpensive adjustment of the differences between claimants and the representatives of deceased persons.
If, after filing such consents, a claimant is left at his option to establish his claim upon the judicial settlement of the account of the executor or administrator or to bring an action upon the claim at any time thereafter without limitation it would be subversive of the intended purpose of allowing the filing of such consents and the hearing and determination of such claims by the surrogate upon the judicial settlement of the account of the executor or administrator. The several methods provided for establishing a claim against the estate of a decedent, which are intended to simplify and facilitate the adjustment and payment of claims, should not be used to complicate and retard the final distribution of the estate. Within six months after the claim in this case was rejected the defendants filed a consent that the claim be heard and determined by the surrogate upon the judicial settlement of their account. The plaintiff then by filing a similar consent voluntarily selected the method or procedure by which she desired to establish her claim and she should be and is bound thereby.
The plaintiff is mistaken in assuming that she cannot insist upon an accounting by the executors in the Surrogate's Court. She is a creditor at least to the extent of having a claim against the estate of the decedent with the right to establish such claim upon the accounting in the Surrogate's Court. It is provided by section twenty-five hundred and fourteen of the Code of Civil Procedure as follows: "The word `debts' includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action; and the word `creditor' includes every person having such a claim or demand, * * *." The authorities cited by the appellant to the effect that where a claim presented to the representatives of the estate of a decedent has been rejected the claimant is not entitled upon petition to a citation directed to an executor or administrator to show cause why he should not render or settle his account, because such a claimant is not a creditor whose claim can be established before the surrogate are not applicable to a case where the respective parties have consented as provided by statute to the surrogate hearing and determining the claim upon the judicial settlement of the account of the executors. Where the consents have been filed as stated the claimant may and must establish his claim before the surrogate. He is interested in the accounting. In such a case a claimant is a creditor within the meaning of section twenty-seven hundred and twenty-seven of the Code of Civil Procedure.
The plaintiff's complaint was properly dismissed and the judgment appealed from should be affirmed, with costs.
CULLEN, Ch. J., GRAY, VANN, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.
Judgment affirmed.