
    In the Matter of the Estate of Lawrence Rosenfeld, Deceased.
    Surrogate’s Court, New York County,
    November 13, 1963.
    
      Kaye, Scholer, Fierman, Hays <& Handler (Gerald Moss of counsel), for Loreleii Courtney, petitioner. Joseph F. Kosman for executors, respondents.
   S. Samuel Di Falco, S.

The petitioner seeks the payment of a legacy bequeathed to her under the will of her father. Letters testamentary were issued October 19,1961, more than two years ago. The executors oppose payment of the legacy because of a pending negligence action commenced against the decedent prior to his death and a possible liability of the estate in this connection. The executors contend that the entire estate must be held as a reserve for this contingent liability (Surrogate’s Ct. Act, § 208-b, formerly § 207). In Matter of Schwartz (19 Misc 2d 203, 204), the court held: “ An untried action in negligence does not constitute a debt of the estate until damages are fixed. The adjudicated cases do not indicate any reservation of estate assets in any instance where the claimant is the plaintiff in a negligence action. In Matter of Baldwin (157 Misc. 538), the court held that a claim which is neither due nor ascertainable does not fall within the terms of section 207 and that a claimant thereunder is not a creditor.” In Matter of Zutell (213 N. Y. S. 2d 290, 292-293) it was held: This court has always subscribed to the principle that fiduciaries must be just before being generous and they cannot distribute with knowledge that they are evading the payment of debts. Matter of Segall’s Will, supra [287 N. Y. 52]. But an untried action in negligence does not constitute a debt of the estate until, damages are fixed. Matter of Schwartz, 19 Misc. 2d 203 * * * It is legally, practically and mathematically impossible to determine an amount to be reserved in any case where the claimant is the plaintiff in a negligence action.”

If the administration of this estate were to be suspended until the determination of the pending litigation or a settlement is reached or a judgment entered, the complete administration of the estate could take many years. The contingent claim in negligence does not give claimant the status of a creditor of the estate. If and when such status shall be attained section 170 of the Decedent Estate Law provides the means for reaching assets in the hands of distributees. The application for payment of legacy is granted.  