In re the Estate of Reinach

Thomas, S. The petitioner alleges that he is a creditor of the decedent, and asks that the executrix be required to account, under section 2727 of the Code of Civil Procedure. Letters testamentary were issued to the executrix on April 12, 1900, and if the petitioner is a creditor of the estate his application [584] should be granted. • The petition sets forth that on or about December 14, 1900, petitioner filed his claim with the exeeultrix, ¡and that said claim was “never rejected.” By a supplemental affidavit the petitioner charges that the executrix “ requested deponent to wait for its payment or settlement until some other and unfinished and pending matters for various estates in which said decedent had an interest were settled up.” The executrix by her .answer, and also by a supplemental affidavit, denies and rejects the claim, denies that the claim was presented to her as alleged, denies that she ever admitted or recognized any claim of the petitioner against the estate, and charges that the petitioner was a debtor to the estate and had admitted that fact to her. If the petitioner is not a creditor of the estate he is not entitled to any relief, and I have no power to try or determine the issues raised merely by the claim and its rejection. Matter of Whitehead, 38 App. Div. 319. I have, however, jurisdiction to determine the issue raised as to whether the executrix received a written statement of the claim, and thereafter, by her acts, accepted, approved and promised to pay it, thereby establishing it as valid. Matter of Miles, 170 N. Y. 75. This issue should not be disposed of upon conflicting affidavits without opportunity for cross-examination. I will, therefore, appoint a referee to take proof as to this issue and to report thereon with his opinion. The final disposition of the motion will await the coming in of the report of the referee. D'ecreed accordingly.