In re the Estate of Freije

New York Surrogate's Court

In re the Estate of Freije

14 Mills Surr. 324, 90 Misc. 246, 152 N.Y.S. 726

DecidedApril 15, 1915

StatusPublished

This text of 14 Mills Surr. 324 (In re the Estate of Freije) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Freije, 14 Mills Surr. 324, 90 Misc. 246, 152 N.Y.S. 726 (N.Y. Super. Ct. 1915).

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Opinion

Fowler, S.

— The question which arises upon the settlement of the decree presented by the administratrix is whether creditors who did not present their claims for admission or rejection, but who assigned them to another person before the account of the administratrix was filed, should be cited to attend the settlement of the account. Section 2730 of the Code of Civil Procedure provides that upon the judicial settlement of the account of an executor or administrator all creditors or persons claiming to be creditors of the decedent, except such as by vouchers filed with the account appear to have been paid, must be cited. Subdivision 3 of section 2768 of the Code of Civil Procedure defines' creditor as including every person having a claim or demand upon which a judgment for a sum of money could be recovered in an action. A person who has assigned his claim against a decedent cannot after such assignment recover judgment upon the claim, as an action upon such claim could only be brought in the name of the real party in interest, namely, the assignee. (Code Civ. Pro., § 449.) Therefore the assignor of such a claim is not a creditor of the estate' and need not be cited to attend the judicial settlement of the account of the legal representative of the decedent. Costs taxed and decree signed.

Decreed accordingly.

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Fowler, S.

— The question which arises upon the settlement of the decree presented by the administratrix is whether creditors who did not present their claims for admission or rejection, but who assigned them to another person before the account of the administratrix was filed, should be cited to attend the settlement of the account. Section 2730 of the Code of Civil Procedure provides that upon the judicial settlement of the account of an executor or administrator all creditors or persons claiming to be creditors of the decedent, except such as by vouchers filed with the account appear to have been paid, must be cited. Subdivision 3 of section 2768 of the Code of Civil Procedure defines' creditor as including every person having a claim or demand upon which a judgment for a sum of money could be recovered in an action. A person who has assigned his claim against a decedent cannot after such assignment recover judgment upon the claim, as an action upon such claim could only be brought in the name of the real party in interest, namely, the assignee. (Code Civ. Pro., § 449.) Therefore the assignor of such a claim is not a creditor of the estate' and need not be cited to attend the judicial settlement of the account of the legal representative of the decedent. Costs taxed and decree signed.

Decreed accordingly.

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Bluebook (online)

14 Mills Surr. 324, 90 Misc. 246, 152 N.Y.S. 726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-freije-nysurct-1915.