executor claim in New York

1976In Matter of Meyer (95 App Div AD 443, affd 181 NY 562 [on opn of App Div]) the executors petitioned for judicial settlement of their accounts.

1970The mere fact that an executor has a claim against an estate or is involved in litigation with it (Matter of Woodworth, 165 Misc. 770 , affd. 254 App. Div. 852 ) or is indebted to the estate (Matter of Tysen, 245 App. Div. 845 ) or is even in a position of conflict of interest (Matter of Weiss, 33 Misc 2d 773 ; Matter of Kent, 22 Misc 2d 66 ) does not justify removal.

1970The mere fact that an executor has a claim against an estate or is involved in litigation with it (Matter of Woodworth, 165 Misc. 770 , affd. 254 App. Div. 852 ) or is indebted to the estate (Matter of Tysen, 245 App. Div. 845 ) or is even in a position of conflict of interest (Matter of Weiss, 33 Misc 2d 773 ; Matter of Kent, 22 Misc 2d 66 ) does not justify removal.

1970The mere fact that an executor has a claim against an estate or is involved in litigation with it (Matter of Woodworth, 165 Misc. 770 , affd. 254 App. Div. 852 ) or is indebted to the estate (Matter of Tysen, 245 App. Div. 845 ) or is even in a position of conflict of interest (Matter of Weiss, 33 Misc 2d 773 ; Matter of Kent, 22 Misc 2d 66 ) does not justify removal.

1970The mere fact that an executor has a claim against an estate or is involved in litigation with it (Matter of Woodworth, 165 Misc. 770 , affd. 254 App. Div. 852 ) or is indebted to the estate (Matter of Tysen, 245 App. Div. 845 ) or is even in a position of conflict of interest (Matter of Weiss, 33 Misc 2d 773 ; Matter of Kent, 22 Misc 2d 66 ) does not justify removal.

1970The mere fact that an executor has a claim against an estate or is involved in litigation with it (Matter of Woodworth, 165 Misc. 770 , affd. 254 App. Div. 852 ) or is indebted to the estate (Matter of Tysen, 245 App. Div. 845 ) or is even in a position of conflict of interest (Matter of Weiss, 33 Misc 2d 773 ; Matter of Kent, 22 Misc 2d 66 ) does not justify removal.

1963(Matter of Jagnow, 148 Misc. 657 .) The surety in its answer to the petition has alleged, among other things, that the issue is moot inasmuch as Bichard Arnold died insolvent; that the Statute of Limitations and laches of the executor are a bar; and that Charles W.

1937(Johnson v. Corbett, 11 Paige, 265 .) The Surrogate’s Court Act provides for the filing of contingent or unliquidated claims against estates (§ 207) and releases the executor from the claim if not filed as to any assets paid in satisfaction of lawful claims or in making distribution to the next of kin (§ 208). “ The contingent creditor is, therefore, under a duty to assert his claim within the statutory period or before the distribution of the estate.” (Matter of Horner, 149 Misc. 695, 699 .) The landlord is, therefore, entitled to a final order awarding him possession and to a judgment jn the

1937(Johnson v. Corbett, 11 Paige, 265 .) The Surrogate’s Court Act provides for the filing of contingent or unliquidated claims against estates (§ 207) and releases the executor from the claim if not filed as to any assets paid in satisfaction of lawful claims or in making distribution to the next of kin (§ 208). “ The contingent creditor is, therefore, under a duty to assert his claim within the statutory period or before the distribution of the estate.” (Matter of Horner, 149 Misc. 695, 699 .) The landlord is, therefore, entitled to a final order awarding him possession and to a judgment jn the

1911The case of Ulster County Savings Institution v. Young ( 161 N. Y. 23 ) was one of a verbal rejection of an oral claim, and the court held that as section 1822 applied to the. rejection by an executor of a claim “exhibited to him,” the language of the statute “clearly indicates that the claim exhibited must be in writing.” It was so in the present case.

1907The allowance by an executor of a claim presented against an estate “ establishes, prima facie, the accuracy of the items without other proof; and the opposite party is bound to show affirmatively a mistake or error.” Lambert v. Craft, supra; Matter of Warrin, 56 App. Div. 414 .

1899Matter of Huntley, 13 Misc. 375 .

1897In the more recent case of Schutz v. Morette ( 146 N. Y. 137 ) it was held that mere silence on the part of the executor to whom a claim, against the estate he represents has been presented, does not relieve the claimant from establishing it by evidence.

1895(Lockwood v. Thorne, 18 N. Y. 285 .) But the doctrine has, from the nature of the case, a much more restricted application when the plaintiff relies upon the silence of an executor to whom a claim against the estate he represents has been presented.