Filed Date: 6/15/1884
Status: Precedential
Modified Date: 11/3/2024
This decedent died in December, 1878, leaving an estate of which his widow, Catharine A. Scofield, was, in January, 1879, appointed administratrix. She remained such until her own decease in August, 1882. In October of that year, she was succeeded by this petitioner, Jesse Scofield, who was then appointed administrator de bonis non. In December, 1883, Margaret E. Adriance, the respondent, became administratrix of the estate of Catharine A. Scofield. This petition prays for an order directing the respondent, as such administratrix, to account for and deliver over to the petitioner any of the trust property which has come to her possession or is under her control.
First. Counsel for respondent insists that the
It is insisted by the petitioner that the present proceeding has no such relation to that in which costs were awarded against him as to be stayed by their nonpayment. This, however, is a question which need not here be determined; for an examination of certain provisions of the Code has satisfied me that § 779 has no application to Surrogates’ courts. That section is contained in chapter 6, which consists of six titles. Title 1st and a portion of title 6th are expressly made applicable to Surrogates’ courts by § 2538. But no reference is therein made to title 5th, of which § 779 forms a part. It is further provided by subdivision 6 of § 3347 that (save for certain exceptions which will be jDresently noted) “ chapter 8 applies only to proceedings . in an action or special proceeding in one of the courts specified in subdivision fourth of this section.” The courts so specified in subdivision fourth are the Supreme court, Superior city courts, the Marine court of the city of Hew York and County courts. Manifestly
Second. I must, however, deny the petition upon its. merits. It does not allege that any property belonging to decedent’s estate has ever come into the possession of this respondent, or that any such property is now under her control. It is only as to such property that the Surrogate has jurisdiction to direct an accounting (Code Civ. Pro., § $606; LeCount v. LeCount, 1 Demarest, 29, and cases cited; Maze v. Brown, ante, 217.)