In re the Final Judicial Settlement of the Account of McComb

New York Supreme Court

In re the Final Judicial Settlement of the Account of McComb

17 N.Y. St. Rep. 723

New York Supreme Court·Decided June 25, 1888·Published

Opinion

Dykman J.

This is an appeal from an order of the surrogate of Kings county, overruling certain objections to the accounts of the executors, and directing payment of the general debt out of the proceeds of property sold by them under a power contained in the testator’s will. The executors having presented a petition for a judicial settlement of their accounts, certain creditors were cited to appear, and attend upon such accounting; and the executors of the last will and testament of Abram B. Baylis, interposed a claim against the estate of James Shannon, deceased, for the sum of $4,000; and- the surrogate made a decree for its payment out of the moneys in the hands of the executors arising from the sale of the real estate of the deceased.

The claim of the executors of Baylis was undisputed, and the only question involved on this appeal is, whether under the circumstances the surrogate had power to decree the [724]*724payment to the executors of Baylis of the principal of the said indebtedness.

The estate of the testator, whether personal or real, was under all circumstances liable for debts contracted by the deceased during his life-time, without regard to any disposition which he may have made of his property by his last will and testament. A will operates only upon such property as the testator has, or upon such as remains subject to its provisions after the payment and satisfaction of all just debts of the testator, and he can make disposition of nothing more than he actually owns.

It seems to be_, therefore, unnecessary to decide many of the questions raised by the appellant upon this appeal, and our conclusion is that the decree should be affirmed with costs.

Barnard, P. J., and Pratt, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Dykman J.

This is an appeal from an order of the surrogate of Kings county, overruling certain objections to the accounts of the executors, and directing payment of the general debt out of the proceeds of property sold by them under a power contained in the testator’s will. The executors having presented a petition for a judicial settlement of their accounts, certain creditors were cited to appear, and attend upon such accounting; and the executors of the last will and testament of Abram B. Baylis, interposed a claim against the estate of James Shannon, deceased, for the sum of $4,000; and- the surrogate made a decree for its payment out of the moneys in the hands of the executors arising from the sale of the real estate of the deceased.

The claim of the executors of Baylis was undisputed, and the only question involved on this appeal is, whether under the circumstances the surrogate had power to decree the [724]*724payment to the executors of Baylis of the principal of the said indebtedness.

The estate of the testator, whether personal or real, was under all circumstances liable for debts contracted by the deceased during his life-time, without regard to any disposition which he may have made of his property by his last will and testament. A will operates only upon such property as the testator has, or upon such as remains subject to its provisions after the payment and satisfaction of all just debts of the testator, and he can make disposition of nothing more than he actually owns.

It seems to be_, therefore, unnecessary to decide many of the questions raised by the appellant upon this appeal, and our conclusion is that the decree should be affirmed with costs.

Barnard, P. J., and Pratt, J., concur.

In re the Final Judicial Settlement of the Account of McComb, 17 N.Y. St. Rep. 723 (N.Y. Super. Ct. 1888).

Pincite

17 N.Y. St. Rep. 723 (In re the Final Judicial Settlement of the Account of McComb) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.