In re the Estate of Lent

Wingate, S.

This is an application to punish the respondent by incarceration for failure to obey a decretal direction in a discovery proceeding to pay certain sums with which he was found chargeable. An interesting contention is made on his behalf that, since he was not in the fiduciary class enumerated in section 79 of the Surrogate’s Court Act, the decree itself is not evidence of his possession of assets sufficient to enable him to comply with the direction, and that, therefore, contumaciousness may not be imputed f *412to him in the absence of an affirmative demonstration of ability to comply…