Smith v. Howell

The Surrogate. On behalf of the executors, it is claimed that the proceedings are irregular,—First, because no citation has been issued, according to the statute, requiring the executors to appear and account; Second, because there has been no accounting, and Third, because the executors having rendered their account prior to this application, the application must be held to apply to section 32 (2 Statutes at Large, 90). Some confusion is created in attempting to harmonize that section with section 19th and 20th (2 Statutes at Large, 120). By section 19, it is provided that a creditor who has obtained judgment against executors, or administrators, after a trial at law upon the merits, may apply to the Surrogate for an order against such executors or administrators, to show cause ivhy an execution on such judgment should not be issued, and section 20 provides that on such application, the Surrogate shall issue a citation, requiring the executor, or administrator to account, and if upon such accounting there shall appear to be assets in their hands properly applicable to the payment in whole or in part of said judgment, the Surrogate may order such execution to issue for the amount so applicable. This proceeding seems to be confined to a judgment obtained on a trial at law upon the merits, but evidently [328] the accounting is to be made for the purpose of ascertaining whether there be assets in the hands of the executors, or administrators, applicable to such payment, and I see no reason why such an accounting should be made upon each and every application for such execution. If by the account already rendered there shall appear to be assets in hand so applicable, such a proceeding would seem to be absurd. The objection that since the rendering of the account the assets may have been exhausted, or reduced by pay- ■ ment of other claims, cannot be sustained for the reason, that it is not so alleged in the answering affidavit, and it affirmatively appears by the petition that such assets are in the hands of these executors. Section 32 (2 Statutes at Large, 90), above cited, provides that execution upon a judgment against the executors or administrators, shall not issue until an account of his administration shall be rendered and settled, or unless on an order of the Surrogate who appointed him, and this section I understand to apply to all judgment, whether entered on a trial on the merits, or by default, or otherwise, which seems to provide that in cases of accounts which have been settled, execution may issue without an order of the Surrogate, but in other cases it must be by order of the court. It is not, pretended that the account in this matter has been settled; therefore under the second alternative of the section, execution may be issued upon the order of the Surrogate in a “ proper case.” As to the objections that an appeal has been taken and is likely to be determined in a short time, it is sufficient to say that the statute prescribes the mode of staying proceedings upon such appeal, and it would be a great hardship to allow an appeal to be taken without the security required for a stay of proceedings, and yet make that appeal serve the purpose of a stay. [329] The counsel for the executors claims that under the circumstances of this case, the order ought to be refused, because it is discretionary, and cites the case of Mount v. Mitchell (31 N. Y., 356), as an authority upon that subject, but that authority does not sustain the proposition. It does hold that the decision of the Surrogate upon the question of sufficiency of assets shall be conclusive upon that point, and therefore no appeal could be brought to correct or reverse such decision ; but it seems to me when a sufficiency of assets clearly appears, it is the obvious duty of the court to order execution to issue, for the language of the statute is, that if upon such accounting (not a final settlement of the account) it shall appear that there are assets in the hands of such executor or administrator, properly applicable to the payment in whole or in part of the judgment so obtained, the Surrogate shall make an order that execution be issued for the amount so applicable. I see no good reason why execution should not issue in this case for the full amount of the judgment. I am unwilling to establish any such practice, as that an appeal without surety for the purpose of staying execution shall answer the purposes of such stay, especially when it appears that the appellants have available securities in their hands to nearly four times the amount of the judgment. Order accordingly.