Smith v. Christopher
New York Supreme Court
Abram Smith, as executor of Edward Smith who died in March, 1867, brought this appeal from a decree of the surrogate of Rockland county, and made Jane Christopher and Enos Smith, who were legatees under Edward Smith’s will, respondents.
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Abram Smith, as executor of Edward Smith who died in March, 1867, brought this appeal from a decree of the surrogate of Rockland county, and made Jane Christopher and Enos Smith, who were legatees under Edward Smith’s will, respondents. The petition after alleging the probate of the will and the due execution of his duties by the executor, set forth that he was the son of the testator, and during the latter’s lifetime loaned to one Stevens, the sum of three thousand dollars upon the bond of said Stevens secured by mortgage: That he entrusted this bond to the testator to collect the interest:…
1Opinion of the Court
By the Cotjrt.*
Tappeh, J.
[after stating the-facts].—Inasmuch as an executor can not sue himself in an action at law, it is provided by statute, that no part of the property of the deceased shall bé retained by an executor or administrator in satisfaction of his own debt or claim, until it shall have been proved to and allowed by the surrogate ; and the proof of such debt or claim may be made on the service and return of a citation for that purpose, directed to the proper persons, or on the final accounting (2 JR. 8., 88, 4th ed. p„ *336274); and this course is the general practice (Dayton's…
2Cases cited4 opinions
- Robinson v. . RaynorNew York Court of Appeals · 1863
- Moore v. MooreNew York Court of Appeals · 1860
- Coit v. FougeraNew York Supreme Court · 1862
- Andrews v. WallegeNew York Supreme Court · 1859