In re Lydicker's Estate , 17 N.Y. St. Rep. 702 ( 1888 )

Barnard, P. J.

The only question presented by this appeal is whether the claim of John M. Blanvelt against the estate was a disputed claim or not. If it was a disputed claim, the surrogate had no authority to decree its payment. The proof is conflicting. There is no doubt but the claim was presented on the 24th of March, 1886, and that no dissent to the claim was made by the administrator. The claim was upon a note made by the deceased. The administrator subsequently promised to pay the note. “He never disputed this claim at any of these conversations.” “He always promised to pay it.” The administrator never filed any inventory of the estate. In September, 1886, the creditor commenced proceedings to compel .payment of his debt, in the surrogate’s court, and was there met by the allegation that the claim was disputed; that the note was the note of a married woman given to pay her husband’s debt. The administrator promised to pay the claim after the proceedings were commenced. He was the husband of deceased, and entitled to the entire estate. The surrogate dismissed the proceedings, and after the end of 18 months the creditor claimed a final accounting. The administrator avers that the note was given for a judgment against the deceased, and that he thought the judgment debtor had paid the judgment. Ho proof of this payment was given or offered on the trial. If the claim was really disputed, the administrator was not bound to give the proof; but as bearing upon the fact whether it was disputed or not, it would have been proper. The surrogate had the right to determine the fact, and the evidence supports his finding that it was not a disputed one. The first dissent was at the very end of the strict statute of limitations, on the assumption that the claim is in dispute. The administrator had a direct personal interest in the claim, and full knowledge of its basis, and should have plainly and at once objected to it. After the claim has been passed by the administrator it becomes a- liquidated and undisputed debt. Lambert v. Craft, 98 N. Y. 342. The judgment should be affirmed;