Smith v. Christopher

16 Abb. Pr. 332, 6 Thomp. & Cook 288, 10 N.Y. Sup. Ct. 585

Opinion

By the Cotjrt.

Footnotes

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Tappeh, J.

[after stating the-facts].—Inasmuch as an executor can not sue himself in an action at law, it is provided by statute, that no part of the property of the deceased shall bé retained by an executor or administrator in satisfaction of his own debt or claim, until it shall have been proved to and allowed by the surrogate ; and the proof of such debt or claim may be made on the service and return of a citation for that purpose, directed to the proper persons, or on the final accounting (2 JR. 8., 88, 4th ed. p„ 274); and this course is the general practice (Dayton's Surrogates, 359; Moore v. Moore, 21 How. Pr., 211; Robinson v. Raynor, 28 N. Y., 494, rev’g 36 Barb., 198; Matter of Cunningham, 1 Hun. Supm. Ct. 214).

This proceeding is not to be confounded with the claim of a creditor disputed by the executor, where such creditor is not either an executor or administrator ; in such a case the surrogate has not jurisdiction (Andrews v. Wallege, 17 How. Pr., 263).

But where an executor or administrator is a creditor of the deceased, the statute expressly authorizes proof of his claim to, and its examination by the surrogate, and he is not permitted to retain any part of the prop • erty of the deceased in satisfaction thereof, without such proceedings.

The surrogate on passing upon the claim of the executor to the three thousand dollar bond, admitted the testimony of a party to the proceeding, being the testator’s widow, who testified to her husband’s declaration of ownership in himself; the executor thereupon offered two written declarations having the testator’s signature, and tending to sustain the executor’s title to the bond, and these, on objection, were excluded.

We are not now prepared to say how far they are affected or excluded by section 399 of the Oode ; but if a party in interest testifies to declarations of a de-. ceased person, the prohibition contained in that section does not apply, and counter declarations are admissible.

Inasmuch as the case must go back to the surrogate to take proof of a claim offered by the executor as a creditor, the whole proceeding will then be before him, and any error in receiving or rejecting testimony can be corrected.

Decree reversed, and proceedings remitted to surrogate, costs to abide event.

Present, Babnabd, P. J., Aim Tappen, J. (Donohue, J., sat at the argument, but was not present when the opinion was handed down.)