
    
      In re Cunard’s Estate.
    
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    Executors and Administrators—Discovery op Assets—Summary Proceeding.
    Code Civil Proc. N. Y. § 8706 ct seq., provides a means of discovery when money or other personal property which ought to be delivered to the administrator, or which ought to be included in an inventory or appraisal, is in the possession or under the control of a person who withholds the same, or conceals or refuses to exhibit it, so that it cannot he inventoried or appraised. Section 8710 provides that the proceeding must he dismissed on the filing of a verified answer setting up ownership or possession by virtue of a lien or special property. In a proceeding under the statute it appeared that the administrator had filed an inventory which included the property sought to be discovered; and respondent’s answer alleged that the administrator had left the property in respondent’s hands, under a special arrangement authorizing its use, conversion, and reinvestment from time to time; and that the property in respondent’s hands when decedent died had. been converted under said arrangement. Held, that the object of the statute was to provide a summary means of discovery, and, in case of mere naked possession of decedent’s property, to compel delivery to the legal representatives; and that petitioner had no remedy under the statute, his remedy being an action for an accounting.
    AppeaLfrom surrogate’s court, New York county.
    Application of Bache Cunard, ancillary administrator of Edward Cunard, for the examination of Charles G. Francklyn, as to personal property consisting of cash and securities, belonging to the estate of Edward Cunard, in his possession. Francklyn appeared and tiled an answer to the petition, by which he admitted that at the time of Edward Cunard’s death there was personal property of his in the possession and under the control of respondent, but denied that he was the agent of deceased, as alleged in the petition, and alleged that said Cunard left said property in his hands with authority to use the same as he saw fit in his transactions; that after his appointment as administrator in England the petitioner left property of deceased in respondent’s hands as it was before the death of deceased, and consented that respondent should continue in the same relation as he had been before such death towards jtheproperty; that he had paid to petitioner, to his brother and two sisters, their proportions of the estate, or adjusted their claims; and that as to the portion, of the estate which was not so paid or adjusted no part remained in respondent’s hands. The surrogate dismissed the proceedings, and the petitioner appeals.
    Argued before Van Brunt, P. J., and Daniels and Barrett, JJ.
    
      Whetlocli & Simonds, ( William C. Beecher and Alexander B. Simonds, of counsel,) for appellant. Butler, Stillman & Hubbard, (John Notman, of counsel,) for respondent.
    
      
       Affirming 6 N. Y. Supp. 883.
    
   Barrett, J.

The petitioner entirely misconceives the purpose and scope-of sections 2706-2714, Code Civil Proc. These sections were not intended as a substitute for ordinary civil remedies, in cases where the latter are alone appropriate. The object was to provide a summary means of discovery, and, in case of a mere naked possession of the decedent’s “money or other personal property,” to compel delivery to the legal representative. In the case of money, it must be a specific sum, tortiously withheld,—not merely money due- or belonging to the deceased in the sense of an indebtedness. In re Nay, 6 Dem. Sur. 346; In re Knittel, 5 Dem. Sur. 371. So as to personal property in general. It must be some definite thing, upon which the person proceeded against has no possessory claim, and which can be described in the decree. Section 2712. Thus, the executor or administrator is entitled, without delay, to make a full and complete inventory, to frustrate fraudulent concealment of the decedent’s personalty and to reduce the latter to executorial possession. In effecting this purpose he has the efficient aid of the statute. Where, however, there has been neither concealment nor withholding, the executor should be remitted to his appropriate action. Even where there is a withholding the statutory proceeding must be dismissed upon the filing of a duly-verified answer, setting up ownership or possession by virtue of a lien, or special property. Section 2710. In the case at bar the statute has been resorted to without a shadow of necessity. The administrator’s remedy, even-upon the facts stated in his petition, is plainly an action for an accounting. Upon the entire case, however, as presented by the answer,—and not in any way replied to or rebutted,—the application is wholly without merit. It appears that the petitioner long since filed an inventory which specifically included the very property now sought to be discovered. This proceeding was-therefore unnecessary in aid of a proper inventory. It further appears that the petitioner left this very property in the respondent’s hands under a special arrangement, fully authorizing its use, conversion, and reinvestment from time to time. It seems, too, that the securities in the respondent’s hands when Mr. Cunard died have long since been converted under this very arrangement; for it is alleged that in September, 1883, the respondent paid to the petitioner individually the sum of about $300,000, partly for himself and partly for a brother and sister of the deceased, as their proportion of the estate. How, if the respondent has not fully accounted for his doings under the arrangement in question, the petitioner has, doubtless, his equitable remedy. But it is idle to speak of the assets which may yet remain in. his hands unaccounted for as “money or other personal property” of the decedent withheld from the administrator within the meaning and spirit of this act. The application was an attempt to use this summary procedure to effect an end entirely foreign to the purpose for which the statute was designed. It waa properly denied, and the order appealed from should be affirmed, with costs.

All concur.  