In re the Compulsory Accounting of Waring
New York Surrogate's Court
A decree was made in this proceeding directing the executors to pay to Ann M. Paddock and Phebe B. Rockwell, each, the sum of $6,082.55. A transcript of the decree was filed, and the decree duly docketed in the county clerk’s office, and thereupon executions were issued, which, among other things, directed the sheriff to make such sum, in each case, out of the goods, etc., of Jarvis A. Waring, deceased, and if sufficient could not be found, then out of the real property of…
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A decree was made in this proceeding directing the executors to pay to Ann M. Paddock and Phebe B. Rockwell, each, the sum of $6,082.55. A transcript of the decree was filed, and the decree duly docketed in the county clerk’s office, and thereupon executions were issued, which, among other things, directed the sheriff to make such sum, in each case, out of the goods, etc., of Jarvis A. Waring, deceased, and if sufficient could not be found, then out of the real property of the deceased. The sheriff seized some securities left by the testator. A motion is now made to set aside the executions.
1Opinion of the Court
Coeein, S.
The executions are clearly void, and should be set aside. They should have run against the property of Oscar Waring and Wilbur F. Washburn, and not against the property of the estate. Section 2554 of the Code permits execution to be issued against the property of the party directed to make the payment. The next section authorizes, in a proper case, the surrogate to punish the party for contempt for not making the payment as decreed. That, of course, would be a proceeding against his own person. In Peyser v. Wendt, 2 Dem. 221, the surrogate of New York took the view that the…
2Cases cited2 opinions
- Power v. . SpeckmanNew York Court of Appeals · 1891
- In re the Judicial Settlement of the Account of QuackenbosNew York Surrogate's Court · 1902
3Cited by2 opinions
- In re the Judicial Settlement of the Account of MonellNew York Surrogate's Court · 1899
- In re the Judicial Settlement of the Account of QuackenbosNew York Surrogate's Court · 1902