In re the Estate of Belden

14 Mills Surr. 326, 90 Misc. 247, 152 N.Y.S. 723

Opinion

Fowler, S.

— This proceeding to compel payment of a claim was instituted on the petition of a person who claims an interest through a judgment creditor of the decedent, and is governed by section 2687 of the Code of Civil Procedure.

It is conceded that there are not sufficient funds in the estate to pay all the debts. Many creditors. have appeared in this proceeding, and there is a contest as to priority between some of the judgment creditors. I am of opinion that these questions can only he properly decided in an accounting proceeding in which all parties interested are before the court, rather than in a proceeding where only some of the creditors and none of the legatees are parties.

There is now pending in this court an accounting proceeding in this estate. If it appears in the pending accounting proceeding “ that there is a surplus attributable to creditors or persons interested” (Code Civ.'Pro., § 2728), a supplemental citation may issue to all parties interested in the estate for a final and conclusive adjudication concerning- the rights of every one interested in the estate. Such a final decree would necessarily dispose of the very questions raised in this proceeding. I will, therefore, dismiss the petition, without prejudice, however, to the enforcement of any rights of the petitioner in any other proceeding or action.

Application dismissed.