Berkeley v. Kennedy

70 N.Y.S. 762, 62 A.D. 609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1901
• Status: Published

Opinion

PER OURIAM.

The order appealed from was made upon notice to all parties, and directed payment of moneys on deposit with the city chamberlain to the duly-appointed administratrix of Michael Kennedy. As an asset of her intestate’s estate, the'administratrix is prima facie entitled to the possession thereof. Andrew J. Kennedy, a brother of the decedent, seems to have asserted a claim to one-half of the money as a distributee, “unless there is some person nearer than himself en? titled to the fund.” But claims to the fund can only be made through administration. On the appointment of the administratrix, she gave a bond for only $200, which is entirely inadequate security. That was fixed upon an allegation made upon her application for letters oif administration that the estate of the decedent amounted to only $100. The money which the administratrix seeks now to become possessed of is in the hands of the chamberlain, and in directing the payment of money out of court provision should be made for the security of the fund in the hands of the'person to whom it is to be delivered, unless that person is absolutely entitled thereto. The order made in this case should be modified by directing- the payment of the fund to the administratrix upon her. giving security in the surrogate’s court in the sum of $1,200, such security to be approved by the surrogate.

As modified, the order is affirmed, without costs of this appeal.