Opinion
November, 1898.
Walter Cox, for contestant.
Grasmuck Ostrander, for executor.
This proceeding was instituted by an alleged creditor of the decedent, under section 2727 of the Code of Civil Procedure, to compel an accounting by the executor of the estate. An order was made directing the respondent to file his account, which he did. In a schedule annexed to such account it was stated that the petitioner had filed a claim against the estate for $500, but that it had been rejected and no proceedings had been taken to enforce the same. The only objection filed by the petitioner to the account was in respect to the allegation that his claim had been rejected. While this court has no power to pass upon the question of the validity of a claim filed against an estate, it has jurisdiction, where there is a dispute upon that point, to determine whether or not the claim was rejected by the representative of the estate, and if it finds that it has been disputed or rejected, and that within the time specified in the statute no proceeding has been begun for its enforcement, the surrogate must regard such claim as barred, and must enter a decree disregarding it, and directing distribution of the estate among the parties entitled. If it shall find that the claim has not been so disputed or rejected, it must be considered as liquidated and as an undisputed debt, which the representative is obliged to pay. Bowne v. Lange, 4 Dem. 350, and cases there cited. A reference having been ordered, the referee has reported that the claim made in the account that the executor rejected the claim, on or about December 12, 1895, is erroneous, and the objection thereto, to that extent, should be sustained; but, at the same time, he finds that the claim not having been admitted by the executor as a just and proper one to the amount thereof, no decree for its payment can be made until the amount thereof shall be determined by some court having jurisdiction to determine the same. Exceptions to the report were filed by the respondent. The findings and conclusions of the referee are sustained by the evidence taken before him, and the exceptions thereto are overruled and the report is confirmed. It appears from such findings that while the claim was not formally rejected, it was not admitted by the executor to be a valid debt of the estate for the amount claimed, and, therefore, it has not been established as such debt by his agreement or acquiescence, and it is not claimed that it has been established by the judgment of any court having jurisdiction over the question. The petitioner does not ask for the payment of the claim, and, therefore, even if it had been established, any decree which can be entered in this proceeding should not contain a provision for such payment, wholly or in part, although in such case it might adjudicate that the claim had been so established, and such adjudication might be the basis of an application on behalf of the petitioner for payment of same or part thereof, under section 2722 of the Code of Civil Procedure, or in proceedings by the respondent for a judicial settlement of his account under section 2743. The suggestion of the referee that the entering of any decree in this proceeding, directing the payment of the claim, should be suspended until the claim shall be established by a competent tribunal having jurisdiction to determine and adjudicate the same, cannot, therefore, be adopted. In Matter of Callahan, 152 N.Y. 320, it appears that the executrix was the sole devisee named in the decedent's will, and in such a case a provision similar to the one suggested by the referee would be a proper one, as decree of distribution might be made therein, all parties interested in the estate being before the court, which is not the case here. I think that the only decree which can be made here is one stating the account of the executor as filed, except that it shall not adjudge that the petitioner's claim was rejected, but that it had not been admitted or established. This will leave the petitioner free to prosecute his claim in a court having jurisdiction to try the question of its validity, and if he recovers judgment thereon to take such further proceedings as he may be advised, and the decree may contain a provision that it is made without prejudice to such proceeding on his part. Decree may be submitted in accordance herewith.
Decreed accordingly.