
    In the Matter of the Judicial Settlement of the Account of Samuel Jacobs, as Executor, etc., of Yetta Jacobs, Deceased, Appellant; Lena Levy, Respondent.
    Second Department,
    November, 1905.
    Executor — insufficient evidence of allowance of claim by.
    The silence of an executor during the period intervening between the filing of a claim against an estate and the filing of the accounts is not conclusive as to its allowance, where, in fact, the executor has scheduled the claim as disputed and has offered in court to test its validity in legal proceedings.
    The lapse-of a reasonable time after the filing of such claim without objection made by an executor is insufficient to show an account stated, as it is the duty of the claimant to see that the claim is allowed or to begin action.
    The decision of an executor as to the disposition of a claim need not be in writing or in any particular form.
    Appeal by Samuel Jacobs, as executor, etc., of Yetta Jacobs, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court' on the 6th day of April, 1905, allowing the respondent’s claim.
    
      Mitchell May [Samuel E. Klein, with him on the brief], for the appellant. . .
    
      R. M. Cahoone, for the respondent.
   Jenks, J.:

I am of opinion that the allowance of the claim was error. Certainly the oral communication of the executor to Mr. O’Mally, then the attorney for the claimant, does not make- for the allowance of the claim by the executor. If we disregard that communication it then appears that the executor made no sign after the claim was presented, until he filed his accounts wherein he scheduled the claim as disputed. On the hearing of the objections filed by the claimant the executor stated in open court that he would enter into -a written stipulation submitting the merits of the claim to the surrogate or permitting the same to be otherwise tried. But the learned surrogate determined that the’ claim had never been rejected, and, therefore, it was allowed. While the surrogate had jurisdiction to pass upon that question (Matter of Miles, 170 N. Y. 75), I think that the determination was wrong. Aside from the dealings^ with Mr. O’Mally (which could not in any event avail the claimant), such determina-' tion was necessarily ha-sed upon the failure of the executor to make ■ any sign during the period intervening the filing of the claim and the filing of the accounts, and the disposition of the. claim in the account and the attitude of the executor upon the hearing of the claimant’s objections to the account. But, frst, the silence of the .executor after the filing of the claim did not conclude him. The doctrine that the .lapse of a reasonable time without objection made, transforms an account rendered. into an account stated, has' a much more restricted application when the "claimant deals with an executor, and the Court of Appeals refused to apply it when similar inaction of an executor followed the presentation of a claim, observing also that the creditor must see to. it that the , claim is admitted or allowed' or else commence an action. (Schutz v. Morette, 146 N. Y. 137. See, too, Matter .of Gallaban, 152 id. 320, 325.) Second, as to" the account itself, it appears that the executor scheduled this claim as disputed. . And, .third,, on the hearing of the objections: the attitude of. the executor was that of a disputant or rejector of the claim. '■ ■. •

I am far from prepared to hold that the communication of the executor to Mr. O’Mally, if established, was not sufficient to show that the claim was then disputed or rejected. For if Mr: O’Mally as attorney for the claimant had authority to' present the claim, which is not now questioned, then I think that such authority, in the absence of aught to t'hjs contrary, justified the, executor in assuming that his 'decision- as to the claim would be communicated to the attorney, (Lochwood v. Dillenbeck, 104 App. Div. 71.) And I know of no principle or rule, and am cited to none; which' requires'that the decisión of the executor should be in writing, or in any particular form. (Jessup Surr. Pr. [2d ed.] 1033.)

The decree so far as- appealed from must be set aside, with costs.

Hirschberg, P. J., Bartlett, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county so far as appealed from reversed, with costs.  