Peck v. Peck , 3 Dem. Sur. 548 ( 1884 )

The Surrogate.

I think the objection to the evidence must be sustained. In the case of Grummon v. Beekman, referred to by the counsel for the petitioner, and in which he was engaged, and which is unreported, decided by this court in 1878, and which, in its main features, was almost identical with facts claimed to exist here, no objection was taken to the proof offered to impeach the validity of the assignment, such as is here interposed. The chief objection there made was that the inventory filed could not be thus impeached. The objection was overruled on the ground that the proceeding was instituted for that purpose. Without further objection, testimony was given tending to impeach the validity of the assignment on the one hand, and to sustain it on the other.. My recollection is that counsel argued the matter upon the merits, not questioning the power of the court to determine accordingly. In considering it, however, it was held that the court had no power to decide tfae question, but that it might look into the facts far enough to enable it to see whether there was any just ground for doubt in reference to it, and if there were, to require a bond large enough in amount to cover the sum involved in the controversy. Had the question then arisen, and attention been called to it by counsel,. as it has here, it would, doubtless, not have been reached.

The statute requires a bond in double the value of the personal property of which the intestate died possessed. This embraces property personally possessed, as well as choses in action and all other property, to the actual possession of which the intestate was entitled, as the legal owner thereof; but it cannot be intended to cover any property of which the intestate, in his lifetime, has divested himself of the legal title, whether such transfer were procured by fraud, or otherwise. This court being unable to try such question, when it shall have been determined by the proper tribunal in favor of the petitioner, if such should be the result, then the application can be entertained, and the order sought be granted.