Opinion
June 28, 1938.
Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.
Decree affirmed, without costs. Memorandum: Under section 309 of the Surrogate's Court Act, we find upon the record and upon admissions made in open court, that there is sufficient money in the estate of decedent to pay the expenses of administratrix and the funeral expenses.
All concur, except Crosby and Lewis, JJ., who dissent and vote for reversal and to remit the matter to the surrogate to proceed in accordance with the following memorandum:
It appearing from the record that the petitioner, as assignee of a claim for funeral expenses incident to decedent's burial, has petitioned the surrogate for an order directing the administratrix to pay such claim, and that the administratrix has filed an answer by which she denies petitioner's allegations as to the reasonableness of his claim and the sufficiency of funds in decedent's estate legally applicable to the payment thereof; and it appearing further that the surrogate on his own motion has required the administratrix to file an account of her administration of decedent's estate for consideration in connection with the petitioner's application, it follows, under the provisions of section 216 of the Surrogate's Court Act, that the determination of petitioner's claim and any order thereupon should have been withheld until the judicial settlement of the accounts of the administratrix or such other time prior thereto when the reasonable expenses of administering decedent's estate have been determined and paid. (The decree directs the administratrix to pay the amount due for funeral expenses.)