#### Estate of Edward Cunard.

*(Surrogates Court, New York County,*

*Filed May 27, 1889.)*

1. Discovery of property—Code Civil Pro., §§. 2706-2714—When

PETITION FOR SHOULD BE DENIED. *320loner a large portion of it, as one of the distributees, and the balance to other distributees of the estate. *Held*(1), as far as the application for a discovery relates to cash alleged to be in respondent’s hands, the petition must be denied.

*319The petition of an ancillary administrator for the discovery of property of decedent in the respondent’s hands, under §§ 2706-2714 of the Code, alleged that the decedent left a large amount of personal property, consisting of cash and securities, with the respondent. The answer of respondent,, after admitting that the decedent left the property referred to in his hands, averred that the same was left with him with authority to use it in business enterprises as he saw fit. That after decedent’s death, and the- . appointment of the petitioner as administator, in England, the respondent informed petitioner of the decedent’s property in his hands, and the petit loner filed an inventory in England, which included this property, and petitioner agreed that it should remain in respondent’s hands for the same purposes as before decedent’s death; that subsequently he paid to petit-

*3203. Same—When petition refused.

That it appearing that the respondent originally came rightfully into the possession of the assets of the decedent with the right to dispose of them; that they remained in his possession under the same terms, subsequent to the decedent’s death, by virtue of his contract with the representative of the decedent’s estate, and that he has disposed of them in accordance with their arrangements, the petition should be refused.

3. Same—Object and intent of statute.

That the object and intent of the statute is for the discovery of property belonging to the estate for the benefit of the estate, and its distributees, and not for an inquisitorial purpose.

*Whitlock &*Simonds, for petitioner; *Butler, Stillman •& Hubbard,*for Charles Gr. Erancklyn, resp’t.

Ransom S.

This is a petition by the ancillary administrator of decedent, for the discovery of property under sections 2706, 2714 of the Code.

The petition alleges that the deceased left a large amount of personal property, consisting of cash and securities, with respondent, and that he now has possession of, or within his knowledge, a large part of the same, amounting to about §200,000; alleges demand for delivery and for information concerning the same, and refusal of respondent to comply with the demands.

The answer admits that the decedent left a large amount of personal property of the character mentioned, and that at his death there was personal property in the possession of the respondent. Respondent denies that he was the agent of the decedent, but states that the property was left by decedent in his possession, with authority to use the same as he saw fit, in business enterprises and transactions. That after the decedent’s death, and the appointment of the petitioner, as administrator, in England, the petitioner filed, an inventory in England, which included a schedule of the personal property in this country in the hands of the respondent. After his appointment in England,, the petitioner left the property in this country in the respondent’s hands, and consented that he should continue in the same relation thereto as he had been before decedent’s death. Matters so continued for a number of years.

The respondent states that he paid petitioner §100,000, being his proportion of decedent’s property in this country, and also paid the shares of other persons entitled to distribution, and adjusted the claims of other distributees to a share of assets of the estate in this country. _ He alleges that all the property of decedent remaining in his hands was paid to the distributees as aforesaid, and that nothing now remains in his possession; that since the appointment of the administrator in 1878, the latter has been aware of *321the property of decedent in his hands, and that full information with reference thereto, and statements of accounts thereof, and that he has gone over fully, from time to time, the matters in this country, with the respondent.

So far. as the application for a discovery relates to cash alleged to be in respondent’s possession, it must be denied. *In re*Knittel, 5 Dem., 371; *In re Nay,*6 id., 346.

The application, with reference to the discovery of securities, remains to be considered.

Counsel for the petitioner claims that, while the answer may be of service in defining the issues to be considered in the examination asked for, it is not sufficient to prevent such examination. He urges that section 2710 provides the only means by which the inquiry may be prevented, viz.: by alleging title in the respondent, or claim of possession by virtue of a lien.

Surrogate Coffin held, in the *Estate of Masterson*(6 Dem., 460), that an answer, though inartificially and discursively drawn, may entitle the respondent to a dismissal of the proceedings if the court is able to infer from the allegations of fact a claim of ownership or title to the possession of the property.

*In re Wing*(41 Hun, 452) the answer recited that the property, bonds and notes in question were placed in the respondent’s hands by thé deceased, under an agreement between them that the respondent should hold the same as security for such advances as respondent should make to the deceased; that the respondent at the same time agreed to make, and did make, such advances; that the deceased never repaid him, and that respondent, as provided in the agreement, disposed of the property in the life-time of the decedent, and applied the whole proceeds to his reimbursement, and that he had none of the property in his possession.

The very point urged by the petitioner’s counsel here was considered by the court, which held (Justice Landon writing the opinion) that the respondent, asserting the Tight of possession with the right of disposition, which right he had exercised, the order of the surrogate dismissing the petition should be affirmed. In the dissenting opinion, Justice Parker thought that, as an answer in the form prescribed by section 2710 had not been interposed, the surrogate should have permitted the examination to proceed; and then, if the testimony elicited showed that the title to the property was involved, the examination should terminate.

In the *Estate of Knittel*(5 Dem., 371) the property concerning which discovery was sought, consisted of money in *322the_Bowery Savings Bank. Surrogate Rollins said: “A decision that the inquiry must proceed could only be justified upon the ground that the representative of an estate is accorded by sections 2706-14, the right to examine a debtor of his decedent, merely for the sake of ascertaining the nature and amount of such debtor’s liability to the estate. This ground is untenable.” He dismissed the proceedings.

In the *Estate of Nay*(6 Dem., 346), Surrogate Rollins held, that if the petition is to be interpreted as simply alleging an indebtedness on the respondent’s part to the decedent’s estate, it must be dismissed, and that an executor or administrator cannot proceed to the collection of an ordinary debt by means of the machinery provided by sections 2706 *et seq.*

It will thus be seen that in the *Wing*Case, at general term, and in the decision of the *Estate of Masterson,*it is held that it is not absolutely essential that the answer should be in the strict form prescribed by section 2710. The decision was based upon the ground that the respondent asserting the right of possession with the right of disposition which he had exercised, the court considered a sufficient answer was set up.

In the case at bar, it appears that the respondent originally came rightfully into the possession of the assets of the decedent, with the right to dispose of them; that they remained in his possession under the same terms subsequent to his decease, by virtue of his contract with the representative of the decedent’s estate, and that he has disposed of them in accordance with their arrangement. The two-cases seem to me to be alike.

Eleven years have elapsed since the death of the decedent. Shortly thereafter the administrator filed an inventory in England, making the statement of the respondent herein a part thereof. Frequent statements and accounts have passed between the respondent and the administrator, all of which have been acquiesced in. The statute is directed to the purpose of discovering property for the purpose of an inventory and an appraisement. If this application is granted, it will virtually be for an inquisitorial purpose.

Application