In re Lomax

Appellate Division of the Supreme Court of New York

In re Lomax

249 A.D. 634, 291 N.Y.S. 87, 1936 N.Y. App. Div. LEXIS 5322

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 16, 1936

StatusPublished

This text of 249 A.D. 634 (In re Lomax) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Lomax, 249 A.D. 634, 291 N.Y.S. 87, 1936 N.Y. App. Div. LEXIS 5322 (N.Y. Ct. App. 1936).

Pincite

Opinion

Order granting respondent’s motion and dismissing a discovery proceeding to determine whether or not the petitioner is entitled to receive the proceeds of a policy of life insurance as an asset of the estate of which she is successor executrix reversed on the law and the facts, with ten dollars costs and disbursements, payable by respondent personally, and motion denied, without costs. In our opinion, the judgment in favor of the respondent in the replevin action instituted in the City Court is not binding upon the appellant as successor executrix of the estate in question, for the reason that it appears that this judgment was obtained against one Emma Sesselman, as executrix of the estate of a deceased executor. Such an executrix was simply a temporary custodian of the estate which came into the possession of the deceased executor, and her only obligation was to render an accounting of his proceeding as executor to the time of his death. (Matter of Hogeboom, 219 App. Div. 131, 135.) In the absence of a judgment binding upon the estate, we are of opinion that sections 205 and 206 of the Surrogate’s Court Act empower the surrogate to determine the issue of title to the specific fund represented by the proceeds of this life insurance policy on the issues raised by the respective claims thereto by the petitioner and the respondent. Young, Hagarty, Johnston, Adel and Taylor, JJ., concur.

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Order granting respondent’s motion and dismissing a discovery proceeding to determine whether or not the petitioner is entitled to receive the proceeds of a policy of life insurance as an asset of the estate of which she is successor executrix reversed on the law and the facts, with ten dollars costs and disbursements, payable by respondent personally, and motion denied, without costs. In our opinion, the judgment in favor of the respondent in the replevin action instituted in the City Court is not binding upon the appellant as successor executrix of the estate in question, for the reason that it appears that this judgment was obtained against one Emma Sesselman, as executrix of the estate of a deceased executor. Such an executrix was simply a temporary custodian of the estate which came into the possession of the deceased executor, and her only obligation was to render an accounting of his proceeding as executor to the time of his death. (Matter of Hogeboom, 219 App. Div. 131, 135.) In the absence of a judgment binding upon the estate, we are of opinion that sections 205 and 206 of the Surrogate’s Court Act empower the surrogate to determine the issue of title to the specific fund represented by the proceeds of this life insurance policy on the issues raised by the respective claims thereto by the petitioner and the respondent. Young, Hagarty, Johnston, Adel and Taylor, JJ., concur.

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Bluebook (online)

249 A.D. 634, 291 N.Y.S. 87, 1936 N.Y. App. Div. LEXIS 5322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lomax-nyappdiv-1936.

Opinion

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