In re the Estate of Hartman

28 Misc. 2d 258, 210 N.Y.S.2d 80, 1961 N.Y. Misc. LEXIS 3491

Opinion

John D. Bennett, S.

This is a proceeding by the widow claiming a right of election under section 18 of the Decedent Estate Law, and section 200 of the Surrogate’s Court Act, and as a creditor, to compel the executor to return an inventory.

The amount claimed as a creditor, namely $2,705.88, has been tendered by the executor, and the dispute on this item only involves interest on that sum from April 14, 1960. As to property due her under section 200 of the Surrogate’s Court Act, the widow has a separate and different proceeding to compel a setoff of such exempt property under section 201 of the Surrogate’s Court Act. The papers submitted appear to indicate that there is some dispute as to the right of petitioner to elect under section 18 of the Decedent Estate Law. However, for the purpose of this application, the court will assume that the petitioner has the necessary status to bring the proceeding.

Since the amendment to section 199 of the Surrogate’s Court Act by chapter 702 of the Laws of 1928, which changed the direction that the Surrogate “ must make an order ” to “ may make an order ”, the granting of the relief sought is discretionary with the court. The personal property of the decedent is slightly over $11,000, being in cash, stocks and bonds, insurance claims and an automobile, all of which can be readily valued. The claimant’s interest in the estate, assuming she establishes all her claims, appears to be less than $3,500. To secure an inventory under the statute, with its cumbersome procedure of requiring the appointment of two appraisers, appraisals in the presence of the parties, possibly at different places, and the return and filing of such inventory, would require an expenditure of time and money totally unwarranted by the size of this estate and the nature of the assets and the claims against them.

The application for an order requiring the executor to return an inventory of the personal property of the decedent is denied in the discretion of this court, without costs to either party and without prejudice to a proceeding under section 203 of the Surrogate’s Court Act.