In re Haskett , 3 Redf. 165 ( 1877 )

The Surrogate.

— Though the amount involved in this proceeding is small, it seems to me an appropriate case for the settlement of the authority of special collectors, which appears to be generally misunder.stood by the profession. '

Under the Revised Statutes (2 R. S., 76, § 2), the authority of a collector is declared to be to collect the goods, chattels, personal estate and debts of the deceased, and secure the same, ■ and, under the direction of the Surrogate, to sell such goods as may be deemed necessary for the preservation and benefit of the estate, after their appraisal.

By section 44 (2 R. S., 77), such collector is required, within ten days after receipt of money, to deposit, &c.

By section 51 (2 R. S., 77), he is forbidden to sell or transfer any of the personal property of the deceased, except on order of the Surrogate, which-shall be made on notice to the parties interested.

It will be observed that the statute contains no authority to pay the debts of the estate, but the collector is only required to preserve and collect the goods, &c., of the estate.

By section 10 of chapter 359 of the Laws of 1870 (1 Laws of 1870, p. 828), the surrogate of this county is given power, after six months shall have elapsed from the granting of such special letters, to authorize and direct such collector to publish a notice for claims, as executors and administrators are authorized to do, and the Surrogate is empowered, after one year shall have elapsed from the granting of such letters, upon the application of such collector, or of any creditor, and upon proof that the debts owing do not exceed the assets, to direct the payment of any debt, or proportionate part thereof, due from said estate.

Whatever may have been the supposed implication of power, from the former statutes, of the Surrogate to direct and control a special administrator, the language of the act of 1870 seems to leave no room for doubt that the Surrogate has no power to direct the payment of debts by a collector, except by virtue of the latter statute, and that that power must be exercised according to the terms of section 10 thereof, and after one year shall have elapsed since the appointment of such collector.

Without considering the question whether the collector in this matter has assets sufficient to pay the debt of the petitioner, as well as all the claims against the estate, the motion must be denied for want of power on the part of this court to direct any such payment.

Ordered accordingly."