
    Matter of the Estate of Franklin E. Saunders, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      December, 1907.)
    Executors and adminístratos—Bulbs and liabilities between representatives AND ESTATE-CLAIMS BY PERSONAL REPRESENTATIVES; DEFENSES AVAILABLE—ESTOPPEL; EVIDENCE.
    Estoppel—Equitable estoppel and estoppel in pais—Facts creating estoppels—Acquiescence.
    The fact that, in a conversation between decedent and a creditor of his firm, relating to the enforcement of the creditor’s claim, at which the executor, who was his father, was present, no reference or inquiry was made as to any personal indebtedness of the decedent, and no mention by the executor of any indebtedness of deceased to him, does not estop the executor from asserting his claim, duly established, against the estate.
    Reversed 129 App. Div. 406.
    Proceeding upon judicial settlement of the accounts of an executor.
    Morris U. Ely, for executor; Putnam, Twombly & Putney, for contestants.
   Church, S.

The indebtedness of the deceased to the executor is established by ample evidence. It is claimed, however, by the contesting creditor that as to his claim the executor is estopped from asserting the same. This contention is based upon, the following circumstances:

The deceased was a member of the firm of “ F. E. Saunders & Company,” the interest of his partner therein, however, being comparatively small. It appears the firm had incurred a number of obligations, among them being that of the contestant, Barnard. Barnard had notified the firm that he intended to liquidate his account and refused them further credit.

The deceased, in company with the executor, who was his -father, thereupon had an interview with Barnard for the purpose of postponing the enforcement of his claim and of obtaining further credit. At this conversation inquiry was made by Barnard as to the indebtedness and obligations of the firm, and lie in addition desired complete trial balances from the firm’s books, agreeing that if these were satisfactory he would extend further credit, provided that when the deceased wished to purchase merchandise not only would the firm be required to pay for the same but in addition would have to pay a like amount toward the liquidation of the old account.

At this conversation no reference or inquiry was. made as to any personal indebtedness- of the deceased and no mention was made by the executor of the indebtedness which he now claims against the deceased. There was no affirmative suggestion made in relation thereto by the deceased, as to which the implied acquiescence of the executor could be deemed as any assurance to the contestant, Barnard.

Under this state of affairs the essential elements of an estoppel are lacking; and the executor, therefore, should be allowed his claim without any distinction as to the rights of the creditor, Barnard. Let decree be presented accordingly.

Decreed accordingly.  