Close v. Shute

4 Dem. Sur. 546

• Court: New York Surrogate's Court
• Decided: July 15, 1886
• Status: Published

Opinion

The Surrogate.

The first question presented for consideration is—what interest have Close & Robertson, the attorneys for the plaintiffs who obtained a judgment in the Supreme court against the administrator, in the estate which he represents. They are not creditors of the intestate. The costs they claim have accrued since his death. Of course, unless it shall- appear that they have an interest in the estate they cannot institute this proceeding. I think, however, that they have such interest. The statute gives them a lien, in that court, on the amount of the recovery for their costs. While no such lien can be recognized for services rendered by an attorney in this court, as was held in the case of Smith v. Central Trust Co. (ante, p. 75), yet such a lien established elsewhere must here be regarded and respected. The law creating this lien of the attorney operates an assignment, pro tanto, of the amount of the recovery, and § 2743 of the Code directs the Surrogate to decree payment to an assignee of a claim. The petitioners are, therefore, considered proper parties to this proceeding.

The counsel for the administrator objects that his client should not thus be compelled to render an account of his proceedings again, inasmuch as he fully rendered such account in his application to dispose of the intestate’s real estate for the payment of his debts. It is true that an account was thus rendered, but its sole object was to enable the petitioner to comply with the requirements of subd. 4 of § 2752 of the Code, and thus to show a necessity for the disposal of the real estate for the purpose of paying debts. No decree of distribution of the balance on hand could be based upon such an account. The parties to that proceeding were not cited to attend a judicial settlement thereof, but to show cause why a decree directing the disposal of the real estate should not be made.

As the personal estate is first liable for the payment of debts, funeral expenses and expenses of administration, it would seem to follow that there should be a judicial settlement of the accounts of the administrator, and a decree made distributing, pro rata, any balance which may be found in his hands, before proceeding to a decree for the sale of the real estate. How else can the Surrogate comply with subd. 5 of § 2759?

I refrain from entering upon other considerations springing from the subject, at this time, deeming the reasons stated sufficient to justify me in requiring the rendering of an account by the administrator.

Ordered accordingly.