McKeown v. Fagan

The Surrogate.—It appears by the petitions, that the assets of the estate are insufficient to pay all the debts in full, thereby rendering it necessary to settle and adjust the accounts of the administratrix, in order to ascertain what proportion of the fund in her hands is applicable to the payment of these debts. (Campbell v. Bruen, 1 Bradf., 224, 226 ; Dayton on Burr., 2 ed., 463.) Formerly that could be done without citing all, the parties in interest to attend the settlement of the account (Id.) but the Code has made a very material change in that respect. The account of an executor or administrator can only be settled and adjusted now, under the provisions of article 2 of title 4 of chapter 18 of the Code, which provide for the settlement of such an account on the ap 321 plication of a creditor, but require, in such, cases, if there is a surplus to be distributed, that the creditor or persons claiming to be creditors of the decedent, and the decedent’s husband or wife, next-of-kin and legatees, if any, or if either of those persons has died, his executor or administrator, if any, may be cited to attend the settlement. (§§ 2729, 2729.) . The proper proceeding therefore by a creditor to obtain payment of a proportional part of his debt, where the estate is insolvent, is to compel a judicial settlement of the account of the executor or administrator, as the case may be ; all the parties interested will then be before the court, and will be bound by the proceedings taken to ascertain the proportional share of the surplus, which will be directed by the decree to be paid to each. (Code, § 2514, subd. 8, § 2743 ; see also note to Throop's Code, § 2718.) The proceedings in both cases must be dismissed, without'prejudice to an accounting in behalf of the petitioners. (Code, § 2718.) Ordered accordingly.