Warren v. Hammond

Patterson, J.: It will be seen from the foregoing statement that, although Hammond as administrator entered into an agreement by which a distribution of the moneys he received has been made to various parties, including legatees under the will of Thomas V. J. Christophers, yet it is insisted by him that such moneys are not assets of the estate of his decedent. It is alleged in the affidavit of the attorney for Warren that the $17,263 was received by Hammond in settlement of a claim against the Hnited States for the loss of the ship Ganges, being one of those claims known as the French Spoliation Claims. The administrator insists that under the acts of the Congress of the Hnited States and under the decisions of the Supreme ■ Court of the Hnited States construing those statutes the fund which [587] lie received is not an asset of the estate of Christophers, but, on the contrary, is a gift, gratuity or bounty made or given by the United ■States, and that the creditors of the decedent have no right or interest therein, it belonging exclusively to, and being for the sole benefit of, the next of kin of the decedent, and, hence, it is argued that the moneys are not available to the creditors of Thomas Y. J. Christophers. It appears also that Hammond has distributed the moneys or some of them under the will of Christophers, and has treated them, to some extent, as if they were assets of his estate; but that has been done apparently with the consent of the next of kin and by an agreement to which they were parties. In the order appealed from it is recited as follows : “ And it appearing to my satisfaction that the assets of the said estate are sufficient to pay the said judgment in full, it is * * * Ordered, that the said motion be and the same is hereby granted and the said1 Charles J. Warren is hereby permitted to issue execution upon the said judgment in due form of law in his favor and against the said administrator to collect the sum of Two thousand four hundred fifty-one and 08-100 ($2,451.08) dollars with interest thereon from the 27th day of February, 1905.” This adjudication is conclusive evidence (except on appeal) that there are sufficient assets in the administrator’s hands to satisfy the sum for which the order permits the execution to issue. (Code Civ. Proc. § 2552.) We are of opinion that there was not enough in the proof before the surrogate to authorize the order made. The proceeding is taken under sections 1825 and 1826 of the Code of Civil Procedure. By the first section it is enacted that an execution shall not be issued upon a judgment for a sum of money, against an executor or administrator, in his representative capacity, until an order permitting it to be issued has been made by the surrogate from whose court the letters were issued and that such an order must specify the sum to be collected, and that the execution must be indorsed with a direction to collect that sum. So far the proceeding is regular. By section 1826 it is provided, however, that where it appears that the assets, after payment of all sums chargeable against them for expenses, and for claims entitled to priority as against the plaintiff, are not or will not be sufficient to pay all the debts, legacies or other claims of the class to which the plain till’s claim belongs, the [588] Sum. directed to be collected by the execution, shall not exceed the plaintiff’s just proportion of the assets. No preference can be given to a judgment creditor under this section. (Schmitz v. Langhaar, 24 Hun, 168; affd., 88 N. Y. 503.) "We think there was not enough before the surrogate on this application to justify the finding that there were in the hands of the administrator assets sufficient to pay in full the Warren claim. It is a very serious question whether the amount paid to the administrator with the will annexed is an asset of Christophers’ estate at all, but we are not called upon to determine that now, in the absence of the record of the judgment in the Court of Claims. That the administrator with the will annexed may have dealt with some of the proceeds of that judgment as an asset is not conclusive upon the question; he could not deprive the next of kin of their interest in that fund by any act of his, and if he has distributed the money under the terms of the will of Christophers with the assent of the next of kin, if the money belonged to them that does not convert the fund into an asset of the estate. To entitle the petitioner to have execution issue upon his judgment, he is required to show either that the representative has funds of the estate on hand applicable to the payment of the judgment which he refuses to apply, or that funds of the estate have been misapplied which should have been devoted to the payment of the judgment. (Matter of Gall, 40 App. Div. 114.) It is not satisfactorily shown here that the funds arising out of the payment to the administrator of this French Spoliation Claim is an asset of Christophers’ estate. It is alleged to be so in the affidavit of the judgment creditor, but the answering affidavit plainly sets forth that there is not money or other property of the estate of Christophers applicable to the payment or satisfaction of Warren’s claim. We think this is an eminently proper case for' an accounting under subdivision 1 of section 2725 of the Code of Civil Procedure which allows proceedings against an executor or administrator, where an application has been made by a judgment creditor, as prescribed in section 1826 of said Code, in which the surrogate may, in his discretion, make an order requiring an executor or administrator to render an intermediate account. 'On such an accounting, everything in connection with the award made by the [589] Court of Claims may be inquired into and the nature of that award, whether constituting an asset of Christophers’ estate or not, may be determined. It is true that an order to account is within the discretion of the surrogate, but we think that he should determine, after a full disclosure of all the facts, whether the Ganges award is an asset of Christophers’ estate, and that the order should be reversed without prejudice to the right of Warren as a judgment creditor to take such proceedings in connection with his application for leave to issue execution, or otherwise, as he may be advised. The order must be reversed, with costs of the appeal to abide the event. O’Brien, P. J., McLaughlin and Laughlin, JJ., concurred: Ingraham, J., concurred in result. Order reversed, with costs of appeal to abide event.