
    In the Matter of the Judicial Settlement of the Accounts of Wilhelmina Clauss (now Schickling), as Executrix, etc., of Christian Clauss, Deceased. Wilhelmina Clauss, as Executrix, etc., of Christian Clauss, Deceased, Appellant; Henry A. Vieu, Respondent.
    
      Executor and administrator — a surrogate .may, upon a judicial settlement, direct payment of an undisputed established claim — silence upon the part of an executor after presentation, of a claim does not establish it.
    
    In a proceeding for a judicial settlement of an executor’s accounts, instituted under section 3727 of the Code of Civil Procedure, the surrogate has power to direct payment of an undisputed established claim.
    In such a proceeding an executor may dispute the validity of a claim against the estate, and, if it is properly disputed, the surrogate has not jurisdiction to determine as to its validity.
    
      Mere silence upon the part of an executor, to whom a claim against the estate he represents has been presented, does not relieve the claimant from the necessity of establishing it by evidence, if it is afterwards disputed by the executor.
    Appeal by Wilhelmina Clauss (now Schickling), as executrix, etc., ■of Christian Clauss, deceased^. from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 9th day of November, 1896, directing her to pay to Henry A. Yieu, a creditor of the decedent, a sum of $290.70 and costs.
    
      James O. Cropsey, for the appellant.
    
      O. F. /Swart, for the respondent.
   Bradley, J.:

Upon the petition of Henry A. Yieu, an alleged creditor of the' testator, filed in February, 1896, a citation was issued by the surrogate requiring the executrix to show cause why she should not render and settle her account. The matter came on to hearing; and an ■order was made requiring her to render and settle her account on or before the fourth day of Mayi---'She did then file her account, wherein she claimed to have'' disputed the claim of such creditor Yieu. Thereupon lnydiled his answer, denying that his claim ■against the estate liad been disputed by the executrix and alleging that the claim.ywas not rejected by her within a reasonable time ■after it, verified, was served upon her, and that she thereby allowed the clairp/ In June following a proceeding for voluntary accounting wii/s instituted by the executrix, and on the return of the citation therein the two proceedings were consolidated, and in November, 188f6, they came on to hearing. The testimony of Yieu was to the ■effect that bis claim, verified, was served on the executrix about 'October 20, 1894, and that he was advised of no rejection until

Ítay 4, 1896, when she filed her account. She was permitted to id did file her affidavits in the proceeding to the effect that she ad money sufficient to pay all the debts against the estate, including the alleged claim of the plaintiff, that she had supposed such ■claim had been rejected by her attorney and did not learn to the" pontrary until this proceeding was- commenced, and that she deemed (the claim unjust, and referred to a written communication from Yieu to her prior to the time that the claim was presented, in which he stated that he had a claim for services worth $100 which she could pay or not, as she pleased. In view of that statement she added that the claim for $250 presented was unreasonable in amount.

The direction by the surrogate’s decree to pay to Vieu the sum of $250 and interest, making together $290.70, was founded upon the fact that his claim had not been rejected by the executor-within a reasonable time and, therefore, had become a liquidated claim against the estate. As the proceeding was not instituted for the payment of the alleged debt within the provisions of section 2722 of the Code of Civil Procedure, but for a-judicial settlement of the account of the executor provided for by section 2727, it is urged that it was not in the power of the surrogate to direct payment of the claim. We are inclined to think that such" objection in its' application to-an undisputed -established claim is not tenable.

The main question for consideration is whether the delay in rejecting the claim made it á liquidated one against the estate, established, as such, and concluded tite- executor from disputing it. There are-some judicial authorities and "dista apparently to that effect, to. which our attention is called. (Lambert v. Craft, 98 N. Y. 342; Magee v. Vedder, 6 Barb. 352, 354; Underhill v. Newburger, 4 Redf. 499; Matter of Miller, 27 N. Y. St. Repr. 784.)

Those cases do "not so clearly support the affirmative °f the- proposition as to conclude further inquiry on the subject. & the Lambert case the proceeding before the surrogate was- instituted by the* petition- of the creditor’ for direction -to the executors to pa-y her-claim against the estate as provided by the statute, now included in. the provisions of section 2722. The defendants there did notsby answer dispute the validity of the debt, as permitted by that sectio'Uof the Code in such case. And by reason of that omission, there was-nothing in- the way to proceeding in the matter to the conclusion^ reached. -The remarks in the opinion, beyond those relating.to the-1 consequences of the default or omission of the executrix to answer the petition, were not "essential to the questions there presented for/ review. On that subject Judge Danfobth, in delivering the opinion] of the court, said: “Upon this proceeding to compel payment they] (executors) appeared not only in person, but by counsel, and theiri silence when called upon by the citation to speak as to both matters/ is a strong admission by conduct of the justice of the demand, and as conclusive as if proven by witnesses.” The view of the court was that this failure to answer not only permitted the hearing to be had by the surrogate as upon an undisputed claim, but was an admission of the justice of the claim. This disposed of the case.

In the Magee case the questions here for consideration did not arise. There is, however, in the opinion a dictum of the justice who delivered it, to the effect that if, within a reasonable time after a claim is presented, the. executor or administrator does not offer to refer nor dispute it as unjust, it may .be deemed as undisputed and liquidated.

In the cases of Underhill and. Miller (supra) the views expressed by the surrogates were to the same effect.

There are other cases to the contrary. In the more recent case of Schutz v. Morette (146 N. Y. 137) it was held that mere silence on the part of the executor to whom a claim, against the estate he represents has been presented, does not relieve the claimant from establishing it by evidence. In delivering the opinion of the court Chief Judge Andrews added to the statement of such proposition, that, “ It would subject the estates of .decedents to great danger if mere silence of the executor should be regarded as an admission of a claim presented and relieve the claimant from establishing it in the ordinary way.” »

Matter of Doran (73 N. Y. St. Repr. 593; 38 N. Y. Supp. 544) is to the same effect. This is the better rule as ajaplied to such cases, as an executor or administrator is not necessarily supposed to know whether a claim presented against the estate is a valid existing one or not.' And the doctrine of an account stated, applicable to living persons, cannot, in justice to the estates of the deceased persons, be effectual as against their personal representatives. The cases prior to that of Schutz v. Morette were not uniform on the question. (Tucker v. Tucker 4 Keyes, 136; 4 Abb. Ct. App. Dec. 428 ; Cooper v. Felter, 6 Lans. 485.)

The surrogate did not attempt to pass upon the merits of the claim as a disputed one, but held that the claim had become undisputed' and established by the lapse of time after its presentation without rejection. This, in the view taken, was error. The executor is not denied the right to dispute claims in proceedings instituted and conducted under sections 2727 to 2729 of the Code, although the formality for doing it is not provided for as in proceedings instituted under section 2722. (Adams v. Glidden, 6 Dem. 197.) And when properly disputed the Surrogate’s Court is denied jurisdiction to determine a claim. • .

Ho further question now requires consideration.

The order should be reversed and the proceedings remitted to the Surrogate’s Court to proceed therein.

All concurred.

Order reversed, with ten dollars costs and disbursements against' Henry A. Vieu, and proceeding remitted to the Surrogate’s Court' to proceed therein.  