Opinion
January Term, 1901.
I.A. Seamans, for the appellant.
Charles H. McMaster, for the respondent.
The decisions of the surrogate upon two applications are presented by this appeal:
First. An application to increase the amount of the penalty in the administrators' bond.
Secondly. To add to the inventory filed certain securities and personal property claimed to have belonged to the deceased at the time of her death, and which Hannah Goundry, the administratrix, had failed to put thereon.
The applications were made by one of the next of kin of the deceased. Citations were issued upon such applications and made returnable at the same time. Both were heard together, and the decision upon each was contained in the one order from which this appeal is taken.
As to the application to increase the penalty of the bond, made under the provisions of section 2597 of the Code of Civil Procedure, we are of the opinion that the order made therein should be affirmed.
The personal property stated in the inventory filed amounted to some $60, and the penalty of the bond filed was $400. Although the property, amounting to some $3,000, which the petitioner claims should have been inventoried, is not shown to be assets of the estate, enough appeared to the surrogate to raise a question whether it would not, upon an accounting, be shown to belong to the estate. Section 2664 requires the administrator to give a bond, and provides that it shall be in a penalty fixed by the surrogate, not less than twice the value of the personal property of which the decedent died possessed, etc., thus leaving it very largely to the discretion of the surrogate as to how large a penalty he will require. Under the circumstances of this case we see no reason for interfering with the decision of the surrogate in this respect.
As to so much of the order appealed from as requires the property in dispute to be included in the inventory filed, we are of the opinion that it must be reversed. It seems to be settled practice that if the administrator claims, individually, title to the property, the surrogate must dismiss the proceeding; and the question of ownership will be determined upon the final judicial settlement of the administrator's accounts. That such an inquiry can be had upon such accounting is plain from section 2731 of the Code. And that it will not be entertained upon an application to file a sufficient inventory under section 2716 is clearly decided in the following cases: Thompson v. Thompson (1 Bradf. 31); Montgomery v. Dunning (2 id. 220); Matter of McIntyre (4 Redf. 489); Estate of Arbogast (9 Civ. Proc. Rep. 232).
In this respect the petitioner has mistaken her remedy. And, although the order made may be practically harmless to the administratrix, it is not warranted by the practice and should not, therefore, be sustained.
Some suggestion is made in the respondent's points that the inventory filed is not correct in form. That question was not considered in the proceedings before the surrogate, and does not seem to be now before us. The order which we now make can be without prejudice to a proper proceeding to correct any such material error.
So much of the order appealed from as requires the execution of a new bond is affirmed. So much of it as requires that the property therein specified be added to the inventory is reversed, and the application for that relief is dismissed. No costs of this appeal are allowed to either party.
All concurred.
So much of the order appealed from as requires the execution of a new bond affirmed. So much of it as requires that the property therein specified be added to the inventory, reversed, and the application for that relief denied. No costs of this appeal to either party.