In re Hearman's Estate

New York Supreme Court

In re Hearman's Estate

11 N.Y.S. 905, 34 N.Y. St. Rep. 231, 1890 N.Y. Misc. LEXIS 2421

DecidedNovember 26, 1890

StatusPublished

This text of 11 N.Y.S. 905 (In re Hearman's Estate) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Hearman's Estate, 11 N.Y.S. 905, 34 N.Y. St. Rep. 231, 1890 N.Y. Misc. LEXIS 2421 (N.Y. Super. Ct. 1890).

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Opinion

Landon, J.

Proceedings were instituted before the surrogate by the executor to obtain the proper order or decree to lease, mortgage, or sell the real estate of the deceased for the payment of his debts. The proper parties were cited and appeared, and several hearings had. The claim of Jacob H. Snyder upon a note alleged to have been given him by the deceased was contested by the executor and the devisees, McClellan & McClellan appeared for the executor; Mr. G. H. Hearman appeared for the devisees, these appellants. One of the defenses to the note was the statute of limitations. December 16, 1889, the matter was submitted to the surrogate for decision upon the evidence. The surrogate’s term of office expired December 31, 1889. December 30, 1889, upon the affidavit of the attorney of the claimant, Snyder, that further material evidence in his favor had been discovered, the surrogate granted an order requiring “McClellan & McClellan, attorneys for the executors, devisees, and other persons interested in the estate of the said Peter D. Hearman,” to show cause at the surrogate’s court to be held, etc., December 31, 1889, at 12 o’clock noon, why the hearing should not be reopened for the purpose of introducing further testimony upon the part of said Jacob H. Snyder. The order was served upon McClellan So McClellan, but not upon Mr. Hearman, who had appeared for the devisees. Mr. McClellan appeared before the surrogate’s court upon the return-day, and in behalf of the executor made sundry objections to reopening the case.' The surrogate decided to reopen the case, whereupon Mr. McClellan withdrew. The surrogate then received additional testimony, and thereafter made an order allowing the claim of Snyder, and made an interlocutory order establishing the debts and providing for an appraisal of the real estate preliminary to the final order in the premises. The devisees excepted.

It thus appears that the case was reopened, and new testimony was received to support Snyder’s claim, without notice to the devisees or their attorney. Their right to contest the validity of this claim (Code Civil Proc. § 2755) was thus impaired. The order and decree are reversed as against the appellants, with costs to them against Snyder, and the ease is sent back to the surrogate’s court for a new trial of the claim, and for such further proceedings as may be proper. All concur.

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Landon, J.

Proceedings were instituted before the surrogate by the executor to obtain the proper order or decree to lease, mortgage, or sell the real estate of the deceased for the payment of his debts. The proper parties were cited and appeared, and several hearings had. The claim of Jacob H. Snyder upon a note alleged to have been given him by the deceased was contested by the executor and the devisees, McClellan & McClellan appeared for the executor; Mr. G. H. Hearman appeared for the devisees, these appellants. One of the defenses to the note was the statute of limitations. December 16, 1889, the matter was submitted to the surrogate for decision upon the evidence. The surrogate’s term of office expired December 31, 1889. December 30, 1889, upon the affidavit of the attorney of the claimant, Snyder, that further material evidence in his favor had been discovered, the surrogate granted an order requiring “McClellan & McClellan, attorneys for the executors, devisees, and other persons interested in the estate of the said Peter D. Hearman,” to show cause at the surrogate’s court to be held, etc., December 31, 1889, at 12 o’clock noon, why the hearing should not be reopened for the purpose of introducing further testimony upon the part of said Jacob H. Snyder. The order was served upon McClellan So McClellan, but not upon Mr. Hearman, who had appeared for the devisees. Mr. McClellan appeared before the surrogate’s court upon the return-day, and in behalf of the executor made sundry objections to reopening the case.' The surrogate decided to reopen the case, whereupon Mr. McClellan withdrew. The surrogate then received additional testimony, and thereafter made an order allowing the claim of Snyder, and made an interlocutory order establishing the debts and providing for an appraisal of the real estate preliminary to the final order in the premises. The devisees excepted.

It thus appears that the case was reopened, and new testimony was received to support Snyder’s claim, without notice to the devisees or their attorney. Their right to contest the validity of this claim (Code Civil Proc. § 2755) was thus impaired. The order and decree are reversed as against the appellants, with costs to them against Snyder, and the ease is sent back to the surrogate’s court for a new trial of the claim, and for such further proceedings as may be proper. All concur.

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Bluebook (online)

11 N.Y.S. 905, 34 N.Y. St. Rep. 231, 1890 N.Y. Misc. LEXIS 2421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hearmans-estate-nysupct-1890.