Cleveland v. Whiton
New York Supreme Court
APPEAL from an order made hy the county judge of Tompkins county, acting as surrogate, allowing certain rent as a set-off or counter-claim against a judgment, owned by the appellant, which was recovered against John L. Whiton, executor of the last will of Elias Eraser, deceased.
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APPEAL from an order made hy the county judge of Tompkins county, acting as surrogate, allowing certain rent as a set-off or counter-claim against a judgment, owned by the appellant, which was recovered against John L. Whiton, executor of the last will of Elias Eraser, deceased. The order was made in proceedings instituted before the county judge, acting as surrogate, hy the appellant, to compel the sale of the real estate of the deceased, by his executor, for the purpose of paying his debts. The judgment was recovered by Joseph Proude, in the supreme court, upon two promissory notes made hy…
1Opinion of the Court
By the Court, Balcom, J.
The rent in question accrued subsequent to the testator's death, and therefore belonged to his devisees. (Kohler v. Knapp, 1 Bradf. 241. Payn v. Beal, 4 Denio, 410. Green v. Massie, 13 Illinois Rep. 363. 2 R. S. 83, § 6, sub. 7. See 10 Sim. 184; 12 id. 263.)
If the county judge, acting as surrogate, had not jurisdiction to order that the claim the devisees had against the appellant for rent, be applied, upon his judgment against the executor, the order making such application must be reversed, even though this court would so apply the rent in an action brought by the…
2Cases cited4 opinions
- Wilson v. Baptist Education SocietyNew York Supreme Court · 1851
- Payn v. BealNew York Supreme Court · 1847
- Kohler v. KnappNew York Surrogate's Court · 1850
- People v. PelhamNew York Supreme Court · 1835
3Cited by7 opinions
- In Re the Judicial Settlement of the Accounts of HawleyNew York Court of Appeals · 1887
- Annett v. KerrThe Superior Court of New York City · 1864
- Annett v. KerrThe Superior Court of New York City · 1864
- Savage v. OlmsteadNew York Surrogate's Court · 1877
- Carman v. CowlesNew York Surrogate's Court · 1877
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