In re the Judicial Settlement of the Account of Lattan

New York Surrogate's Court

In re the Judicial Settlement of the Account of Lattan

4 Mills Surr. 190, 42 Misc. 467, 87 N.Y.S. 246

DecidedJanuary 15, 1904

StatusPublished

This text of 4 Mills Surr. 190 (In re the Judicial Settlement of the Account of Lattan) 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.

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In re the Judicial Settlement of the Account of Lattan, 4 Mills Surr. 190, 42 Misc. 467, 87 N.Y.S. 246 (N.Y. Super. Ct. 1904).

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Opinion

Church, S.

Upon the argument of this motion I gave the interpretation which I had placed on this section of the Code (§ 2743), upon which I had acteid in this and other .similar matters. An examination of the briefs of counsel has not changed my determination.

Without going over all the decisions upon this subject it seems to me that it is impossible to state the rule on this matter better than it has been stated by Redfield in the sixth edition of his work (§ 968) : “ Without attempting any discussion of the subject it is enough to say that, in our opinion, the weight of [191]*191authority established the true interpretation of the foregoing section of the Code to be this: that in directing ‘ the payment and distribution to the persons so entitled ’ (i. e., to creditors, legatees, next of kin, husband or wife of the decedent or their assigns), and in determining to whom a debt, claim or distributive share ‘ is payable and the sum to be paid and all other questions concerning the same,’ the court will not recognize claimants other than those having legal titles, but will remit parties claiming adversely to such titles, on grounds of equity, to other tribunals, as not itself having any power to nullify and set aside the deeds of the parties for fraud, or on othejr equitable considerations.”

In Matter of Brown, 3 Civ. Pro. 39, quoted by counsel for the moving party herein, this rule is expressly recognized, and is directly in conflict with the contention of the moving party. The court says as follows (p. 51) : “I am informed that in Kew York county it has been for years the practice of this court to recognize and give effect to assignments when they have not been attacked, but that, whenever their validity has been the subject of controversy, the court has refused to exercise any jurisdiction concerning them.”

This is precisely the theory upon which I have acted in this case, namely, that as at the time of the making of the decree there was no dispute as to the validity of the assignment between either the assignor and assignee or any other person, that thereupon I recognized the validity of the same and directed that distribution should be made to the assignee accordingly, but that if at such time the parties had attempted to contest before me thei then I should have refused to eptertain the same, on the ground same question which they are now attempting to contest, that that it was an equitable matter, to be determined elsewhere.

I may say in conclusion that I am incapable of appreciating tibe contention of the moving party here in relation to this matter, as he seeks to assail the decree on the ground that there was [192]*192no authority to make the same, and then suggests that I should pass upon the validity of the equitable assignment, by reason of his client being receiver, and directing the administrator to pay to his client to the exclusion of any other person.

The motion is, therefore, denied.

Motion denied.

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Church, S.

Upon the argument of this motion I gave the interpretation which I had placed on this section of the Code (§ 2743), upon which I had acteid in this and other .similar matters. An examination of the briefs of counsel has not changed my determination.

Without going over all the decisions upon this subject it seems to me that it is impossible to state the rule on this matter better than it has been stated by Redfield in the sixth edition of his work (§ 968) : “ Without attempting any discussion of the subject it is enough to say that, in our opinion, the weight of [191]*191authority established the true interpretation of the foregoing section of the Code to be this: that in directing ‘ the payment and distribution to the persons so entitled ’ (i. e., to creditors, legatees, next of kin, husband or wife of the decedent or their assigns), and in determining to whom a debt, claim or distributive share ‘ is payable and the sum to be paid and all other questions concerning the same,’ the court will not recognize claimants other than those having legal titles, but will remit parties claiming adversely to such titles, on grounds of equity, to other tribunals, as not itself having any power to nullify and set aside the deeds of the parties for fraud, or on othejr equitable considerations.”

In Matter of Brown, 3 Civ. Pro. 39, quoted by counsel for the moving party herein, this rule is expressly recognized, and is directly in conflict with the contention of the moving party. The court says as follows (p. 51) : “I am informed that in Kew York county it has been for years the practice of this court to recognize and give effect to assignments when they have not been attacked, but that, whenever their validity has been the subject of controversy, the court has refused to exercise any jurisdiction concerning them.”

This is precisely the theory upon which I have acted in this case, namely, that as at the time of the making of the decree there was no dispute as to the validity of the assignment between either the assignor and assignee or any other person, that thereupon I recognized the validity of the same and directed that distribution should be made to the assignee accordingly, but that if at such time the parties had attempted to contest before me thei then I should have refused to eptertain the same, on the ground same question which they are now attempting to contest, that that it was an equitable matter, to be determined elsewhere.

I may say in conclusion that I am incapable of appreciating tibe contention of the moving party here in relation to this matter, as he seeks to assail the decree on the ground that there was [192]*192no authority to make the same, and then suggests that I should pass upon the validity of the equitable assignment, by reason of his client being receiver, and directing the administrator to pay to his client to the exclusion of any other person.

The motion is, therefore, denied.

Motion denied.

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4 Mills Surr. 190, 42 Misc. 467, 87 N.Y.S. 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-judicial-settlement-of-the-account-of-lattan-nysurct-1904.