In re the Estate of Kenny

Appeal by Mary E. Caffrey from a decree of the Surrogate’s Court, Kings County, which adjudged that the said Mary E. Caffrey possessed the sum of $466 in cash which was an asset of the estate .of Mary A. Kenny, deceased; and directed delivery of said sum to the respondent, as administrator of the goods, chattels and credits of the deceased. The petition and order for examination were made pursuant to section 205 of the Surrogate’s Court Act; and the order provided that the said Mary E. Caffrey should show cause why she should not be directed, pursuant to sections 40 and 206 of the Surrogate’s Court Act, to deliver the property of the decedent to the respondent. The appellant defaulted in her answer to the petition. It is not necessary that an issue of title be raised, and the fact that the appellant claimed neither title nor right of possession, but denied at the hearing held before the Surrogate that she was or ever had been possessed of the money of the decedent, does not deprive the Surrogate’s Court of jurisdiction to direct that the property of the decedent be delivered to the administrator. (Surrogate’s Ct. Act, § 40, subd. 4, § 206; Matter of Akin, 248 N. Y. 202.) The testimony presented a question of fact. The Surrogate, who had the opportunity of seeing the witnesses and judging their credibility, decided in favor of the respondent and there is no occasion for this court to disturb his finding. Decree unanimously affirmed, with costs to the respondent. Present — Close, P. J., Hagarty, Carswell, Adel and Lewis, JJ.