In re the Estate of Simon , 48 Misc. 2d 851 ( 1966 )

John D. Bennett, S.

This is a motion by the executors to strike the objections of the respondents on the grounds that the said objections were not properly served upon the executors pursuant to sections 208 and 208-a of the Surrogate’s Court Act.

The respondents have filed objections to the executors’ account due to the executors ’ failure to pay them $10,000 pursuant to a written agreement allegedly entered into by the testator and the respondents, which was signed by the testator on July 6, 1958.

The executors contend that since they were appointed on May 7, 1964, more than seven months prior to the receipt of the respondents’ claim, the claim is not timely pursuant to section 208 of the Surrogate’s Court Act.

Where a claimant is late in presenting his claim, an executor is not chargeable with assets paid in satisfaction of debts or distribution (Matter of Brenner, 171 Misc. 627) provided distribution is made in good faith and the executor did not have personal knowledge of the claim (Matter of Gill, 42 Misc. 457, affd. 101 App. Div. 607, revd. 183 N. Y. 347; Matter of Scadron, 34 Misc 2d 23).

However, the protection afforded under section 208 relates only to the extent of distribution actually made by the executor (Matter of Horner, 149 Misc. 695; 3 Warren’s Heaton, Surrogates’ Courts [6th ed.], § 270, par. 7, subd. [e]). The accounting filed by the executors indicates that funds have not been distributed and there are sufficient funds to pay the respondents’ claim if it is allowed. Accordingly the executors’ motion is denied.