Matter of Dawson v. Kelly

Full title: In the Matter of the Claim of FRED DAWSON, Respondent, v . FANNIE KELLY…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 29, 1922

200 App. Div. 730 (N.Y. App. Div. 1922)

Opinion

March 29, 1922.

John Griffin, for the appellant.

Robert H. Jackson and Eleazer Green, for the respondent.

SEARS, J.:

After the probate of the will of Andrew Davis, and the issuance of letters testamentary to the appellant, as executrix, the respondent filed with the executrix a claim for $10,000 against the estate. The claim was promptly rejected by the executrix, and after more than a year had elapsed since the letters testamentary had been issued, and previous to any accounting on the part of the executrix, the claimant presented a petition to the Surrogate's Court praying that the executrix be cited to show cause why she should not render her final accounting and pay the petitioner's claim. The executrix answered the petition and denied the validity of the respondent's claim, and the surrogate heard the respective parties upon the issue thus raised, and found in favor of the claimant, allowing his claim at the sum of $2,400, and directed the executrix to file her account within thirty days, and provided that if the executrix should not file her account within thirty days, the claimant should have execution, and allowed costs.

The appellant now contends that the Surrogate's Court was without jurisdiction to determine the claim; that it is the privilege of such a claimant, upon his claim being rejected, to establish his claim in an action at law against the executor or administrator, and unless the claim is so established, the claimant is not a creditor or person interested in the estate within the meaning of section 2727 of the Code of Civil Procedure (Surrogate's Court Act, § 259). This contention overlooks the definitions of "debts," "creditor" and "persons interested" contained in section 2768 of the Code of Civil Procedure (Surrogate's Court Act, § 314).

Since the enactment of these statutory definitions, a claimant whose claim has been rejected is unquestionably entitled to institute a proceeding for a judicial settlement as was done by the claimant in this case. ( Clark v. Scovill, 191 N.Y. 8.)

I am also of the opinion that the evidence was sufficient to warrant the surrogate in allowing the claim of the respondent as the decree provided.

The decree appealed from should be affirmed, with costs.

All concur.

Decree affirmed, with costs.