In re the Estate of Benson

11 Misc. 2d 854, 173 N.Y.S.2d 107, 1958 N.Y. Misc. LEXIS 3497

• Court: New York Surrogate's Court
• Decided: April 17, 1958
• Status: Published

Opinion

John D. Bennett, S.

In this proceeding to compel the administratrix to judicially settle her account, a creditor obtained an order to show cause why the administratrix should not ‘ ‘ file a petition praying for a judicial settlement of her account of proceedings filed on the 14th day of January, 1957 and obtain the issuance and service of citation thereon ”.

The order to show cause is prompted by the fact that the creditor eventually seeks to have the real property, which is an asset of the estate, sold for the payment of debts.

Since more than 18 months have elapsed since the issuance of letters, and the compulsory accounting proceeding was commenced more than 18 months after issuance of letters, the administratrix therefore would appear to be the only person authorized to make application for the sale of real property in a proceeding for the judicial settlement of her account (Surrogate’s Ct. Act, § 233).

This does not mean, however, that a creditor is without relief. The proper procedure is indicated in Matter of Cunniff (156 Misc. 596, revd. 246 App. Div. 352, revd. 272 N. Y. 89). The creditor should, in the pending accounting proceeding, bring on by order to show cause, a proceeding to require the administratrix to sell the real property pursuant to article 13 of the Surrogate’s Court Act.

The present order to show cause is accordingly denied without prejudice to a renewal as indicated above.

An order need not be entered. Proceed on this decision.