Matter of Application, Etc., of MacAulay

Danforth, J. It is not denied that the surrogate had jurisdiction over the subject matter, nor that the citation, if properly served was sufficient to require the executor of the will of Isaac Van Wyck, to show cause why he should not file an inventory of the estatej and render and settle his accounts, and pay the legacy bequeathed by the testator to Emma Louisa Van Allen. Whether it was properly issued and served, and jurisdiction acquired over the executor, and if so whether upon his answer the surrogate erred in refusing to dismiss the proceeding, are the questions raised by this appeal. First. The petition on which the citation was granted showed that more than one year had expired since letters testamentary were issued: that as executor, the defendant received property of the testator, and that the petitioner was interested in the estate. This was sufficient, if properly verified, to give the surrogate jurisdiction to entertain the application for payment. The appellant objects to the verification. We think it was sufficient. The affiant declares that “ she knows the contents ” *578 of the petition “ and that the same are true.” This is equivalent to saying that “ they are true to her knowledge,” and although the latter expression would more closely conform to the exact letter of the provision (§ 526), made applicable to the verification of a petition in Surrogates’ Courts (§ 2534), the one adopted is the same in. substance, and nothing more is required. Second. The citation was well' served. The Code (§§ 2521, 2522) provides for service upon a non-resident, either personally without the State, or by publication. The order of the surrogate followed these directions, and the service was in fact made personally in the State of Hew Jersey, on the 9th day of January, 1882. This was thirty days before the return day and was sufficient (§2525). It is true as the appellant claims that as less than six weeks could intervene between the day of issue and the day named for the return of the citation, service by publication would not have answered the purpose; but that mode of service was not resorted to, and for the same reason publication in the State paper, under section 2536, was unnecessary. That act is required only when service is in fact by publication, and when made, is in addition to publication in local papers. When no such publication is made, the requirement has no force, and its observance is not needed when actual personal service is effected. Third. The answer of the defendant was not one which required the surrogate to dismiss the proceedings, under section 2718. It contained no denial of the allegations that by the will of Van Wyclc, a legacy was given to Van Allen; that the petitioner was her administratrix; that assets had come to the hands of the executor, and that the legacy was not paid; nor did it state any fact that makes it doubtful whether the claim of the petitioner was valid or legal. On the contrary it sets out the death of the legatee, and avers that the legacy belongs to, and is payable to her administratrix. It is unimportant that the petitioner, in addition to her title as administratrix, also sets out an assignment from the heirs and.next of kin of Van Allen, of their interest in the legacy, and that this is *579 put in issue. It cannot prejudice her title as administratrix. It is not enough simply to deny the validity or legality of a claim so presented ; the answer must set forth facts to show that it is doubtful, and as they were lacking, the case was not brought within subdivision 1 of section 2718, of the Code. It is also objected by the appellant that the petition should have been dismissed because it was not proved that there was money or other personal property applicable to the payment of the claim in question. This stands on the second subdivision of the same section. (§2718.) The objection, however, is premature. Before the Code, and in proceedings under the Be vised Statutes (Vol. 1, p. 116, § 18, T. 5, p. 11, chap. 6, art. 1), to obtain a decree against an executor for the payment of debts and legacies, it was held that the authority of the surrogate to make such decree should be exercised in conformity with the general principles of equity among creditors, and only in cases where the payment sought for could be made consistently with the rights of all parties interested (Thomson v. Taylor, 71 N. Y. 217), and that before making the decree he would necessarily inquire into the condition of the estate. The principle upon which that decision stands is now expressed in the section above referred to. (§ 2718, subd. 2.) And although the surrogate entertains the petition, he is not as of course to direct payment of the debt, but “is to make such a decree in the premises as justice requires.” To do this he must in some way ascertain the condition of the estate, and so much is implied by section 2718, subdivision 2, which requires a dismissal of the petition when it is not found to his satisfaction that there is money or effects applicable to the claim of the petitioner, and that it can be paid without injuriously affecting the prior claims of others. The petition is not required to refer to-that subject, and the course adopted in this instance was the proper one. The surrogate is authorized by section 2723, subdivision 3, of the Code, to make an order requiring an executor to render an account “upon the return of a citation issued upon the petition,” among others, “ of a person entitled *580 to a legacy ” * * * praying for a decree directing payment thereof, as prescribed in section 2717, supra. The order made in this case is to that effect. It requires a statement of -the accounts and proceedings of the executor, and when that is rendered, if it does not appear to the satisfaction of the surrogate that there are in the hands of the executor assets applicable to the payment or satisfaction of the petitioner’s claim, under the conditions of section 2718, it may he his duty to dismiss the petition. We do not find that any error was committed by the surrogate in entertaining the proceedings or making the order appealed from. It was therefore properly affirmed by the Supreme Court. The order of the Supreme Court should be affirmed with costs to he paid by the appellant personally. All concur. Order affirmed. .