Schmidt v. Heusner , 4 Dem. Sur. 275 ( 1885 )

The Surrogate.

This decedent died intestate. To an application made by his son, one of his next of kin, for an order directing the administrators of the estate to file an inventory, the administrators have interposed an answer in which, they allege that the petitioner is not a person interested in the estate, and that, before the making of this application, he sold, assigned and transferred to Annie Heusner, one of the respondents, all his right, title and interest in and to any effects left by Ms deceased father. This answer the petitioner meets by an affidavit wherein, among other things, he sets up that his signature to the alleged assignment was procured by fraud practiced on him by the respondent.

Upon this state of facts, the petitioner’s application must be granted. It was held by Surrogate Bradford, in Thomson v. Thomson (1 Bradf., 24), that the mere appearance of an interest on the part of an applicant is ordinarily sufficient to authorize an order for the filing of an inventory or account, even though the claim of interest is contested by the executor or administrator. Such is now the doctrine of the Code of Civil Procedure (§ 2514); such, also, was formerly the course of procedure in the Ecclesiastical courts (Kenny v. Jackson, 1 Hagg., 105; Smith v. Price, 1 Lee, 569; Philipson v. Harvey, 2 Lee, 844; Gale v. Luttrell, 2 Add., 234; Wainford v. Barker, 1 L’d Raymond, 232); and such has been the general practice of the Surrogate’s court of this county (Burwell v. Shaw, 2 Bradf., 322; Cotterell v. Brock, 1 Bradf., 148; Fraenznick v. Miller, 1 Dem., 136, and cases cited at p. 154; Creamer v. Waller, 2 Dem., 351).