
    ESTATE OF JOHN SHERRY.
    
      Surrogate’s Court, City and County of New York;
    
    August, 1879.
    Executors and Administrators.—Surrogate’s Decree for Payment of Money.—Contempt.
    An attachment against an executor or administrator for non-payment of money as required by a surrogate’s decree, cannot be issued, unless it be shown that he had the fund in hand at the time of decree.
    
    This was an order requiring the executor of the will of John Sherry, deceased, to show cause why he should not pay the petitioner the sum of $200 allowance to him as counsel fee in lieu of costs made by the decree herein on final account, or show cause why an attachment should not issue as for a contempt in disobeying the mandate of said decree.
    
      Wm. Everett, for the petitioner.
    
      
       See the preceding and the following cases. The same ruling was made by Surrogate Calvin in the estate of Christian Schaefer, at about the same time.
    
   Calvin, Surr.

[After stating the above facts.] —In Watson v. Nelson (69 N. Y. 536), it was held that for the enforcement of surrogates’ orders and decrees directing the payment of money, the only proceedings against the person which can be taken in surrogates’ courts were those authorized to be taken by the late court of chancery in analogous cases that is, if a final decree, an execution against the person; if an interlocutory order, a precept of commitment; and the only exception suggested to this rule is where the decree or order directs the payment to be made out of a specific fund.

Indeed it would seem to be self-evident that the representative of an estate cannot be guilty of a contempt of the decree or order of this court for non-payment of a sum decreed, or ordered, unless it appear that he has the fund in hand, out of which, he could have paid. If he shall have misappropriated the trust funds before the decree or order, he may be charged therewith as funds in hand, yet his misappropriation was in contempt of no order of the court, however reprehensible in itself.

If petitioner shall be able to show that the executor actually and not constructively had sufficient funds in hand applicable to the payment of petitioner’s allowance at the date of decree, then he will have a prima facie case for attachment for contempt, and only then.

The motion must be denied.  