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3 Dem. Sur. 610

Burkhalter v. Norton

New York Surrogate's Court

Decided July 15, 1885

New York Surrogate's Court · decided 1885-07-15

On the accounting in this matter, it appeared that the assets of the intestate were insufficient to pay her debts. Some of the creditors objected that the administrator had omitted, from the inventory and from the .account, the amount of a promissory note for $222.50, which the deceased held against the administrator, together with interest thereon. The latter alleged that the note had been paid by him to the deceased, during her life time.

Decided 1885-07-15

The Surrogate.

¶1It appears to be an undisputed fact that the administrator was and is insolvent, and that the debt established against him is uncollectible. It is, therefore, claimed on his behalf that, although his indebtedness is established, yet he should be credited with the amount thereof, as in the case of any other uncollected and uncollectible claim. To prove his inability to collect it by legal process was impossible, as he could not sue himself, and this is the only forum where even the question of his liability could be determined (Churchill v. Prescott, 3 Bradf., 233). He now stands in the same position as any other debtor to the deceased, the amount of whose indebtedness was omitted from the inventory, and his liability therefor, as administrator, is to be determined -in the same manner. The amount of the claim should be added to the sum of the inventory, and then the same, if the debtor proved to be insolvent, should be credited to the administrator.

¶2*612The administrator stands, too, in the same position as any other debtor, in this respect. Should he become possessed of means to pay his indebtedness, he may be compelled, by the parties in interest, to account for, and pay over the amount thereof, in the same manner as if he had, after an accounting, recovered a doubtful claim from a third person, for which he had received credit on such accounting.

¶3The decree will be entered in accordance with these views. •

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