Neilley v. . Neilley

Andrews, Oh. J. We are of the opinion that the surrogate of Rockland county, had jurisdiction on the final settlement of the accounts of the defendants, as administrators of the estate of Alexander Waldron, to pass upon and settle the claim of the plaintiff as administratrix of the estate of Sarah Byron, against the estate of Alexander Waldron, arising out of the instrument of November 4, 1828. The plaintiff was administratrix of both estates. By 2 Revised Statutes, page 88, section 33, it is provided that “ no part of the property of the deceased shall be 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 such debt or claim shall not be entitled to any preference over others of the same class.’ ’ At common law an executor or administrator had the right to retain for his own debt due to him. from the deceased, in preference to all other creditors of equal degree. This privilege extended not only to debts which he claimed beneficially, but to those to which he was entitled as trustee. (Rogers v. Hoosack's Ex'rs, 18 Wend. 319; Plumer v. Marchant, 3 Burr. 1380 ; Williams on Ex'rs, 1039.) This rule *356 is said to have resulted by operation of law, on the ground that it is absurd and incongruous that an executor or administrator should sue himself, or that the same hand should at once pay and receive the same debt. (Williams on Ex’rs, 1040; Kyle v. Kyle, 67 N. Y. 400.) The Revised Statutes by the section quoted, abrogate this common-law rule, and the section as construed, confers upon the surrogate jurisdiction to adjudge and allow, or disallow a claim of an executor or administrator, whether legal or equitable, against the estate he represents. (Kyle v. Kyle, supra ; Shakespeare v. Markham, 72 N. Y. 400 ; Boughton v. Flint, 74 id. 476.) It is insisted that the section applies only to debts or claims of an executor or administrator in his own right. We think this construction is too narrow. It would leave the common law in force as to claims held by an executor or administrator as such against another estate of which he was also the representative, and this could not have been intended. The words t(his own debt or claim” include a claim as executor or administrator. An executor or administrator is the legal owner of the personal estate, and choses in action of the decedent, and in this case the plaintiff is also the sole beneficial owner of the demand in controversy. The reason of the rule giving the surrogate jurisdiction, applies as well to demands held by an executor or administrator in a representative character, as to those held in his own right. There is the same incongruity in his suing himself in the one case as in the other, or in his adjusting, as the representative of two estates, a demand of one estate against the other, and the same propriety in both cases in granting jurisdiction to the surrogate. The fact that the plaintiff’s husband is joined with her as administrator of one estate, and that she is the sole administrator of the other is not material. (Shakespeare v. Markham, supra.) The decree of the surrogate disallowing the claim being valid, and in full force, is therefore a bar to this action. This leads to a reversal of the judgment. All concur, except Miller and Traoy, JJ., absent. Judgment reversed.