In re Estate of Halleck

By the Court, McKinstry, J.:

It is alleged in the “ opposition that the opponents—as creditors of the estate of Folsom—have a claim against the estate of Halleck “ which is contingent upon the estate of Folsom, deceased, proving insolvent, and such insolvency being caused, wholly or in part, by the acts or omissions of said Halleck as executor,” etc.

The relation of Halleck, as executor, to the estate of Folsom, was fixed during the lifetime of the former. If, by reason of his “acts or ommissions,” the estate of Folsom became insolvent, the right of the creditors of Folsom (to be enforced by appropriate proceedings) was an existing right prior to the death of Halleck. Whether the remedy of the creditors of Folsom’s estate was by action in the District Court for the devastavit, or by obtaining an order for an account and for judgment against the executor in the Probate Court, their “ claim ” was absolute while Halleck lived, and did not depend on the contingency that the estate of Folsom might “ prove to be insolvent ” on an accounting to be taken after the death of the executor of that estate. All claims which constitute demands against the decedent in his lifetime must be presented to the executor or administrator. The “opposition” does not allege that the claim was ever presented to the executrix of Halleck’s estate.

But if the facts that Folsom’s estate was insolvent and that the insolvency was caused by the mal-conduct of Halleck would constitute a “claim” against the estate of the latter, the opposition does not allege the existence of such a claim. It is only averred in the opposition that by reason of an account not having been filed by Halleck, as executor of the Folsom estate, “ the opponents have been unable to determine whether or not the said Halleck was at all indebted to the estate of Folsom, and unable to ascertain whether or not said Folsom’s estate is insolvent.”

Orders affirmed.

Neither Mr. Justice Crockett nor Mr. Justice Rhodes expressed an opinion.