
    In the Matter of the Application by Solomon W. Russell, Jr., as Administrator, etc., for the Discovery of Assets Belonging to the Estate of Robert Stewart, Deceased.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 8, 1894.)
    
    Executors—Discovery of decedent’s property.
    A proceeding to discover property of decedent is not intended to collect debts.
    
      Appeal from a decision and decree in favor of petitioner.
    
      Frederick Fraser, for app’lt; Abner Robertson, for resp’t.
   Putnam, J.

This is an appeal from an order made by the surrogate of Washington county in a proceeding instituted by Soloman W. Russell, Jr., as administrator, etc., of Robert Stewart, deceased, under the provisions of §§ 2707-2709 of the Code of Civil Procedure, to discover property of the'said deceased. It appears that, shortly before the death of said Stewart, he delivered to the appellant, Slocum W. Lake, $57.92, with directions to use the same in payment of his, (Stewart's) debts, and for suitable clothing and bedding for laying out the remains of said deceased; that Lake paid out all of said sum, as directed, but that $22.92 thereof was so paid after the death of said Stewart. The appellant, in his answer to the petition, alleged that he received said $57.92 from deceased, and had paid out the same pursuant to his directions. He did not allege that he was the owner of said $22.92, or entitled to the possession thereof by virtue of a lien thereon, or special property therein (Code Civ. Proc. § 2709), but alleged that he had no property of deceased^ in his possession, and did not withhold any such property from the petitioner. The surrogate held that the payment by Lake of said sum of $22.92 after the death of Stewart was unauthorized and wrongful; and as appellant, in his answer, had not claimed to be the owner, or entitled to the possession, thereof, that the surrogate was authorized, under the above-cited provisions of the Code of Civil Procedure, to direct the payment by said' Lake of said sum to the administrator. We are unable to agree with the conclusion reached by the learned surrogate. The sections of the Code of Civil Procedure above referred to are intended to authorize a summary mode of discovering and reaching property of a deceased party in the hands of third persons. They are not intended to create a procedure to collect debts. Section 2709 provides that: “Where it appears to the surrogate t * that there is reason to suspect that property of the decedent is withheld or concealed by the person cited, he must * * * make a decree reciting the ground of making it, and requiring the person cited to deliver possession of the property to the petitioner. The decree must specify the sum of money or describe the other property.”

The evidence in this case shows that appellant, when this proceeding was instituted, had no property or money of deceased in his possession. The $22.92 had (probably wrongfully) been paid out as directed by deceased, although after his death. The appellant then owed the said sum of $22.92 to the administrator, and, in a proper action, could have been made liable therefor. The claim of the administrator for said sum was for a debt of ap-, pellant to the estate. If the respondent was entitled to any order under § 2709, supra, it was rather against the parties to whom the money received from deceased liad been wrongfully paid by Lake, than against the latter. In re Cunard, 27 St. Rep. 128 ; 7 N. Y. Supp. 553, it was held that the object of the statute was to provide a summary means of discovery, and, in case of a mere naked possession of 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 and belonging to the deceased, in the sense of an indebtedness. When this proceeding was begun, as above stated, appellant had, pursuant to the direction of the deceased, but after his death, paid out the money in question. It was not in- his hands. In consequence of such payment, he became a debtor of the estate for the amount so paid out. The sum could have been collected of him by action. See In re Nay, 19 St. Rep. 259 ; In re Knittel, 5 Dem. Sur. 371; 7 St. Rep. 752. We think, therefore, that the order of the surrogate should be reversed, with costs, and the proceeding dismissed.

All concur.  