Gibbons v. Shepard , 2 Dem. Sur. 247 ( 1883 )

The Surrogate.

It appears that, since the entry of the recent decree directing distribution of the assets of this estate, certain persons purporting to be assignees of Francis H. Saltas, one of the persons interested as legatee under the will, have presented their claims to the administrator. Counsel for the legatee now asks the Surrogate to give some direction in the premises. The persons thus setting up title as assignees would have been at liberty, under § 2731 of the Code, to make themselves parties to the accounting proceeding ; and, under § 2743, the Surrogate, upon entry of the decree, could properly have directed payment to them of the sums to which they might have shown themselves entitled.

The assignees, however, did not ask leave to intervene in the accounting proceeding, have not since applied for opening or modifying the decree, and are not now before the court.

I ought not to pass upon their rights without giving them an opportunity to be heard if they desire, and although they do not even now apply for relief, I am disinclined, in view of the facts here disclosed, to take any immediate steps for the enforcement of the decree. The Code does not, in terms, provide that the assignee of a legacy or distributive share may be cited on application of the executor, to attend proceedings for accounting and distribution, but there can be little doubt, I take it, that such citation would be regular and proper.

I am disposed, therefore, to stay the proceedings for a time, that the administrator may, at his election, apply for opening the decree (so as to afford the Surrogate opportunity to. determine who is entitled to the disputed share o£ this estate), or institute proceedings in another tribunal for interpleading the respective claimants, and thus relieving himself from responsibility.