
    In the Matter of the Settlement of the Account of Nicholas Von Der Lieth, as Executor, etc., of John Von Der Lieth, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed November, 1898.)
    1. SURROGATE’S COURT — JURISDICTION.
    While a surrogate’s court has no power to pass upon the validity of a claim against a decedent’s estate, it has jurisdiction to determine an issue as to whether the claim was rejected hy the executor or administrator.
    2. Accounting — Payment op Debts and Legacies.
    Where, in a proceeding to compel an account, an issue is raised as to whether the petitioner’s claim had been rejected, and the referee reports that the claim was not rejected, but that the executor does not admit that it is a just claim to the amount thereof, and petitioner does not ask its payment, the only decree that can be made is one stating the account as rendered, except that it shall not adjudge that the claim was rejected, but that it has not been admitted or established.
    Motion to confirm referee’s report to whom the question was referred to take proof as to whether or not the claim in question bad been presented to tbe executor, tbis being tbe only objection to tbe account.
    Walter Cox, for contestant; Grasmuek & Ostrander, for executor.
   Arnold, S.

Tbis proceeding was instituted by an alleged creditor of tbe decedent, under section 2727 of tbe Code of Civil Procedure, to compel an accounting by tbe executor of tbe estate: An order was made directing, tbe respondent to file bis account, which be did. In a schedule annexed to sucb account it was stated tba,t tbe petitioner bad filed a claim against tbe estate for $500, but that it bad been rejected and no proceedings bad been taken to enforce tbe same. The only objection filed by the petitioner to tbe account was in respect to tbe allegation that bis claim bad been rejected. While this court has no power to pass upon the question of tbe validity of a, claim filed against an estate, it has jurisdiction, where there is a dispute upon that point, to determine whether or not tbe claim was rejected by tbe representative of tbe estate, and if it finds that it has been disputed or rejected, and that within the time specified in tbe statute no proceeding has been begun for its enforcement, tbe surrogate must regard such claim as barred, and must enter a decree disregarding it, and directing distribution of the estate among the parties entitled. If it shall find that tbe claim has not been so disputed or rejected, it must be considered as liquidated and as an undisputed debt, which tbe representative is obliged to pay. Bowne v. Lange, 4 Dem. 350, and cases there cited. A reference having been ordered, the referee has reported that the claim made in the account that tbe executor, rejected .the claim, on or. about December 12, 1895, is erroneous, and tbe objection thereto, to that extent, should be sustained; but, at tbe same time, he finds that tbe claim not having been admitted by tbe executor as a just and proper one to tbe amount thereof, no decree for Its payment can be made until tbe amount thereof shall be determined by some court having jurisdiction to determine the same. Exceptions to the report were filed by the respondent. The findings and conclusions of the referee are sustained by the evidence taken before him, and the exceptions thereto are overruled and the report is confirmed. It appears from such findings that while the claim was not formally rejected, it was not admitted by the executor to be a valid debt of the estate for the amount claimed, and, therefore, it has not been established as such debt by his agreement or acquiescence, and it is not claimed that it .has been established by the judgment of any court having jurisdiction over the question. The petitioner does not ask for the payment of the claim, and, therefore, even if it had been established, any decree which can be entered in this proceeding should not contain a provision for such payment, wholly or in part, although in such case it might adjudicate that the claim had been so established, and such adjudication might be the basis of an application on behalf of the petitioner for payment of same or part thereof, under section 2722 of the Code of Civil Procedure, or in proceedings by the respondent for a judicial settlement of his account under section 2743. The suggestion of the referee that the entering of any decree in this proceeding, directing the payment of the claim, should be suspended until the claim shall be established by a competent tribunal having jurisdiction to determine and adjudicate the same, cannot, therefore, be adopted. In Matter of Callahan, 152 N. Y. 320, it appears that the executrix was the sole devisee named- in the decedent’s will, and in such a case a provision similar to the one suggested by the referee would be a proper one, as decree of distribution might be made therein, all parties interested in the estate being before the court, which is not the case here. I think that the only decree which can be made here is one stating the account of the executor as filed, except that it shall not adjudge that the petitioner’s claim was rejected, but that- it' had not been admitted or established. This-will leave the petitioner free to .prosecute his claim in a court having jurisdiction to try the question of i-ts' validity, and if be recovers judgment tliereon to take such' further proceedings as he may be advised, and the decree may contain a provision that it is made without prejudice to such proceeding on his part. Decree may be submitted in accordance herewith.

Decreed accordingly.  