In re Ryder's Estate

13 N.Y.S. 542, 1891 N.Y. Misc. LEXIS 1559

Opinion

Pratt, J.

The merits of the decree appealed from are sufficiently discussed in the opinion of the surrogate. From that opinion it appears that the-proofs were sufficient to sustain the findings, and that the latter justify the-conclusions of law deduced therefrom. But it is claimed by the appellant that-the surrogate had no jurisdiction to determine the issue at the time of tire trial. This point is not well taken. Under the provisions of 2 Rev. St. p. 88,. § 33, it was frequently held that a surrogate had jurisdiction to hear and determine any and all claims in which the executor was interested. Shakespeare v. Markham, 72 N. Y. 400; Kyle v. Kyle, 67 N. Y. 408. Section 2739 of the-Code of Civil Procedure is a codification of the former statutes, and no change of the practice seems to have been intended. The objection that such a claim could only be heard after an accounting was not valid, as that question was not raised by the answer to the petition. The answer only put in issue the question whether the services were performed under a contract, and their value. It must be taken as conceded, therefore, that the estate was ample for the payment of all the debts. The fact that the services might have been rendered, even although there had been no promise of payment, does not prevent the petitioner from claiming compensation. The other points are sufficiently answered in the opinion of the surrogate. Decree affirmed, With, costs.