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and 114 New York State Reporter

(39 Misc. Rep. 477.)

In re HUNTINGTON'S ESTATE.

(Surrogate's Court, New York County. December, 1902.)

1. ADMINISTRATION-INVENTORY-APPLICATION.

An application to compel executors of an estate to file an inventory

can only be made by a creditor or a person interested in the estate. 2. SAME-SUFFICIENCY.

An allegation in an application for an order requiring executors of an estate to file an inventory, alleging that the applicant is a stockholder in a corporation out of which the testator, who was an officer, improperly made large profits, and that the applicant had sued in behalf of the corporation to recover the same because the corporation would not do so, is insufficient to show the applicant to be a creditor of the estate, or

inte sted in it, so as to compel the executors to file an inventory. 8. SURROGATE-JURISDICTION.

The surrogate is without jurisdiction to try and determine a disputed claim.

In the matter of the estate of Collis P. Huntington. Application for an order requiring the executors to file an inventory. Denied.

Robert L. Cutting, for petitioner.
Maxwell Evarts, for executors.

THOMAS, S. The petitioner seeks to obtain an order requiring the executors of the testator to file an inventory of his estate. In the petition he alleges that he "has a large claim against the estate, which he is diligently prosecuting," but no other particulars of his claim are set forth. In the affidavit upon which his order to show cause is based he sets forth the grounds of his claim and cause of action to be as follows: The petitioner is, and since 1894 has been, a stockholder of the Central Pacific Railroad Company. He says that "during the years 1865, or thereabout, to 1898, or thereabout,' the testator was an officer and director of said company, and that he, together with Leland Stanford, Charles Crocker, Mark Hopkins, and others, controlled its business and corporate acts; and that he and his associates were also interested during those years in the Contract & Finance Company and the Pacific Improvement Company. On behalf of the Central Pacific Railroad Company, the testator and his associates entered into contracts with themselves, acting under cover of the said companies, for the construction and equipment of the Central Pacific Railroad, and the said construction companies profited by said contracts to the extent of $125,000,000. On these facts the petitioner has made demand on the board of directors of the Central Pacific Railroad Company to bring suit against the estate of the testator for an accounting and for a decree that the executors of said estate pay over "to the Central Pacific Railroad Company" such sum as shall be found due on said accounting. No such action having been brought by the company, the petitioner has commenced

q1. See Executors and Administrators, vol. 22, Cent. Dig. $ 314.

an action for the same relief, which is now pending in the supreme court.

If all of these facts are true, and if they are sufficiently stated, and if the action in the supreme court shall end in a decree awarding the relief the petitioner seeks, the petitioner is not, and will not become, a creditor of the estate of the testator. The creditor is the Central Pacific Railroad Company. The only decree that the supreme court is asked to make is that payment be made to it. It, and not the petitioner, can alone release the claim; and the circumstance that the rules of equity as administered in the supreme court permit the petitioner, in an action in which it is made a party, to assert and litigate its claim, does not have the effect of making the petitioner the owner of the claim or the creditor. In Pendle v. Waite, 3 Dem. Sur. 261, it was alleged that the petitioner was a partner of a son of the decedent; that his partner, without his knowledge or consent, paid $10,000 out of the assets of the firm to the decedent, when the actual debt to him did not exceed $100; that this payment was fraudulent and void as to him and the firm creditors, and that "the said firm or its legal representatives” had a valid claim against the estate for said sum of $10,000. It was held by Rollins, S., that these facts did not make the petitioner a creditor, so as to entitle him to an order requiring the executor to file an inventory, and it was said that "it is not enough for him to aver that some person other than himself is a creditor, even though the allegation to that effect is undisputed." The definition of the word "creditor" in section 2514 of the Code of Civil Procedure is not entirely full, but it does not aid the petitioner. He is not a "person having such a claim or demand," since his claim is subordinate to that of the corporation. The principle that would extend the rights of a creditor to him would also include a person having a power of attorney from the creditor, limited to the commencement of an action in the supreme court in his name, and for a specially defined form of relief. The petitioner's claim is disputed and denied. I am without jurisdiction to try and determine the issues raised, or to adjudge the petitioner to be a creditor of the estate of the testator, even if his allegations, uncontradicted, would make him a creditor. I am therefore precluded from awarding him a remedy which he has no right to demand unless he is a creditor. In re Whitehead, 38 App. Div. 319, 56 N. Y. Supp. 989; In re Wagner's Estate, 119 N. Y. 28, 23 N. E. 200, affirming In re Wagner, 52 Hun, 23, 4 N. Y. Supp. 761.

The respondent concedes that, until his claim has been reduced to judgment, he has no strict legal right; but he argues that under the general power of a surrogate to direct and control the conduct of executors and administrators I may and should require the filing of an inventory, as a duty imposed by statute upon all executors. In support of this contention he cites Thomson v. Thomson (1849) I Bradf. Sur. 24; Cotterell v. Brock (1850) Id. 148; Forsyth v. Burr (1862) 37 Barb. 540; Creamer v. Waller (1884) 2 Dem. Sur. 351. Other and later decisions may be found to the same effect, but they all rest on the cases decided by Surrogate Bradford in 1849 and 1850,

and 114 New York State Reporter without discussion as to the reasons for the rule. Surrogate Bradford discusses the practice of the English ecclesiastical courts, which was, of course, based on special powers belonging to them, not at all applicable here; and rests his decision on a provision of the Revised Statutes then in force. This provision of law was repealed when the Code of Civil Procedure took effect, on September 1, 1880, but it does not seem to have been noticed that these early cases were thus rendered obsolete. The power of control by a surrogate over executors and administrators is, by the Code of Civil Procedure, required to be "exercised in the cases and in the manner prescribed by statute.” Section 2472. Section 2716 prescribes the only cases in which the filing of an inventory may be compelled, and it can now only be done on the application of "a creditor or person interested in the estate." The purpose of filing an inventory is to give information to the parties having interest in the assets. Even if a discretionary power could be spelled out from the statute to require the exhibition of the affairs of the estate on the request of a person holding an unproved and disallowed demand, such discretion should be exercised only where the surrogate is satisfied that the claim is probably meritorious, and that the opposition to it is vexatious, and probably unreasonable. The facts disclosed by the affidavits submitted on this application do not lead me to any such conclusion; and, if I have such a discretionary power, I refuse to exercise it. The application is denied.

Application denied,

(39 Misc. Rep. 480.)

In re MOENCH'S ESTATE.

(Surrogate's Court, New York County. December, 1902.)

1. TRANSFER Tax-COLLECTION LIMITATIONS.

Testatrix died January 12, 1893, at which time Laws 1892, c. 399, re lating to transfer tax, was in force. At such time the right of the state to sue for such tax did not accrue until the expiration of 18 months after the payment could have been made. Laws 1899, c. 737, which became a law May 26, 1899, provided that, limitations should be no defense to a proceeding to collect the transfer tax. The transfer tax on the estate was fixed November, 1902. Held that, if the proceeding by the district attorney to enforce payment was barred within six years by Code Civ. Proc. $ 382, subd. 2, as a liability created by the statute, such right of action existed at the time the act of 1899 was passed, so that after such time the statute of limitations was no defense to a proceeding to collect

the tax. 2. STATUTE OF LIMITATIONS-TRANSFER TAX.

An amendment to a statute of limitations may lawfully be retroactive.

In the matter of the estate of John Moench. Proceeding to enforce payment of transfer tax. Granted.

Julius Offenbach, for state comptroller.
John Mulholland, for executrix.

1 2. See Limitation of Actions, vol. 33, Cent. Dig. $ 25.

THOMAS, S. This is a proceeding commenced by the district attorney of the county of New York to enforce the payment of a transfer tax. His petition sets forth that the testator died on January 12, 1893, leaving a will, by which the respondent was appointed executrix and made sole legatee, and that said will had been duly admitted to probate, and letters testamentary thereon had been issued to the respondent; that an order was made November 18, 1902, fixing the amount of transfer tax; that the comptroller of the state had notified him in writing of the failure, neglect, and refusal of the person liable to pay said tax; and that no part of said tax has been paid. The respondent appears and files no written allegation or denial by way of answer, but orally contends that, while the averments of the petition are all true, the six-years statute of limitations is a complete bar and defense. I will treat this as a formal and sufficient plea of the statute.

At the time of the death of the testator the statute governing the transfer tax then in force was Laws 1892, c. 399, entitled “An act in relation to taxable transfers of property," the provisions of which, so far as they are applicable to the present proceeding, were substantially identical with those of our present statute. The tax became payble at the time of the transfer, to wit, at the death of the decedent. If paid within six months thereafter, a discount of 5 per centum was to be deducted and allowed, and no interest was to be charged if payment was made within eighteen months. Section 4. The proceeding to enforce the payment of the tax could only be taken by the district attorney if the treasurer or comptroller of any county shall have reason to believe that any tax is due and unpaid under this act, “after the refusal or neglect of the persons liable therefor to pay the same,” and shall notify the district attorney in writing of such failure or neglect. Section 15. As the law then stood, the right to maintain a proceeding such as the present one accrued to the state when the executrix either refused or neglected to pay the tax. No refusal was alleged, and the executrix was not chargeable with neglect during the six months within which a premium was offered for prompt payment, and probably not within the eighteen months during which payment could be made without interest. It has accordingly been held that the proceeding could not be initiated until the expiration of eighteen months. Frazer v. People, 6 Dem. Sur. 174. Assuming that the transfer tax is a "liability created by statute," and therefore within the six-years limitation (Code Civ. Proc. § 382, subd. 2; People v. Roberts, 157 N. Y. 70, 51 N. E. 437), the proceeding could have been commenced at any time prior to July 12, 1900. By Laws 1899, c. 737, which became a law on May 26, 1899, it was enacted, amending the tax law, being chapter 908, Laws 1896, by the addition of a new article, that:

“The provisions of the Code of Civil Procedure, relative to the limitation of time of enforcing a civil remedy, shall not apply to any proceeding or action taken to levy, appraise, assess, determine or enforce the collection of any tax or penalty prescribed by articles nine or ten of said chapter, and this act sball be construed as having been in effect as of date of the original enact

and 114 New York State Reporter without discussion as to the reasons for the rule. Surrogate Bradford discusses the practice of the English ecclesiastical courts, which was, of course, based on special powers belonging to them, not at all applicable here; and rests his decision on a provision of the Revised Statutes then in force. This provision of law was repealed when the Code of Civil Procedure took effect, on September 1, 1880, but it doe not seem to have been noticed that these early cases were thus rer. dered obsolete. The power of control by a surrogate over exec tors and administrators is, by the Code of Civil Procedure, requir to be "exercised in the cases and in the manner prescribed by si ute." Section 2472. Section 2716 prescribes the only cases in wł the filing of an inventory may be compelled, and it can now only done on the application of "a creditor or person interested in estate.”. The purpose of filing an inventory is to give informatio the parties having interest in the assets. Even if a discretionary er could be spelled out from the statute to require the exhibit: the affairs of the estate on the request of a person holding a proved and disallowed demand, such discretion should be exc only where the surrogate is satisfied that the claim is probably torious, and that the opposition to it is vexatious, and proba reasonable. The facts disclosed by the affidavits submitted application do not lead me to any such conclusion; and, if such a discretionary power, I refuse to exercise it. The appli denied.

Application denied.

(39 Misc. Rep. 480.)

In re MOENCH'S ESTATE.

(Surrogate's Court, New York County. December, 19.

1. TRANSFER Tax-COLLECTION-LIMITATIONS.

Testatrix died January 12, 1893, at which time Laws 15 lating to transfer tax, was in force. At such time the rig to sue for such tax did not accrue until the expiration of 1 the payment could have been made. Laws 1899, c. 737, w law May 26, 1899, provided that limitations should be l' proceeding to collect the transfer tax. The transfer ta' was fixed November, 1902. Held that, if the proceeding attorney to enforce payment was barred within six yea Proc. $ 382, subd. 2, as a liability created by the statut action existed at the time the act of 1899 was passed, si time the statute of limitations was no defense to a pre

the tax. 2. STATUTE OF LIMITATIONS—TRANSFER Tax.

An amendment to a statute of limitations may lawf:

In the matter of the estate of John Moench. E. force payment of transfer tax. Granted.

Julius Offenbach, for state comptroller.
John Mulholland, for executrix.

1 2. See Limitation of Actions, vol. 33, Cent. Dig. $ 23.

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