Estate of Kellinger.

the sufficiency of a bond, under circumstances like the present, to dispense with sureties upon the due execution of a guaranty, that I must sustain the construction. which would hold, that even without sureties, a bond so guaranteed is valid and legal.

ESTATE OF MARY KELLINGER, DECEASED. SURROGATE'S COURT, KINGS COUNTY; JULY 7, 1882.

$2555.

Surrogates' decrees for payment of money. - Enforcement of, against executor, by process of contempt.— Such enforcement, before execution issued, is discretionary.-When contempt process should not be

employed in the first instance. To what, power to

enforce obedience by contempt proceedings,

should conform.—What objection

on such proceedings can

not be sustained.

While the surrogate may, under subdivision 4 of section 2555, enforce a decree relating to the estate of a testator and directing the payment of money by an executor, by contempt proceedings, without an execution having been issued, it is discretionary with the surrogate so to do; or, to first require the return of an execution against the property of the executor.[] And in the absence of any reason for a contrary course, there is no hardship in requiring an execution to be first issued against the property of the executor before attempting to enforce the decree by punishment for contempt; and, where nothing appears to show the necessity or propriety of resorting in the first instance to contempt proceedings, such proceedings will be dismissed. [*] [*] [*] The extraordinary power given to surrogates' courts for the enforcement of their decrees requiring the payment of money, by process of contempt, should be exercised in conformity to the liberal spirit of our legislation on the subject of imprisonment for debt.[*]

On proceedings to punish an executor for contempt, in refusing to obey a decree requiring him to pay to legatees a proportional part of their legacies, an objection that the claims of legatees being several could not have been joined in one proceeding to obtain a decree of payment, and that the decree was, therefore, void, cannot be sustained. The

Estate of Kellinger.

objection does not go to the jurisdiction of the court; and, if sound, and not waived, it would, at most, be cause for reversing the decree on appeal, but it affords no excuse for disobedience.['] [*]

People ex rel. Fries v. Riley (25 Hun, 587), distinguished.

Motion to punish an executor for contempt, in having refused to obey a decree of the surrogate directing the payment of money.

The facts are sufficiently stated in the opinion.

Arthur Van de Water, for motion.

James J. Rogers, opposed.

LIVINGSTON, Surrogate. This is an application to punish an executor for contempt of court, in refusing to obey a decree requiring him to pay to legatees a proportional part of their respective legacies.

On the return of the order to show cause why he should not be so punished, the executor appeared by

attorney and moved to dismiss the proceeding. [1] First. On the ground that the claims of the

legatees being several, they could not join in one proceeding to enforce payment of the same, and that therefore the decree obtained in that proceeding was void.

Second. Because an execution had not been issued on the decree, against the executor, and returned unsatisfied.

[2]

In answer to the first objection, it is sufficient to say, that it cannot be taken in this proceeding. It does not go to the jurisdiction of the court. If sound, and not waived, it would, at most, be cause for reversing the decree on appeal; but it affords no excuse for disobeying it, (Erie Railway Co. v. Ramsey, 45 N. Y. 644).

As to the second objection, it is expressly provided that where, as in this case, the delinquent is an executor,

Estate of Kellinger.

and the decree relates to the estate, it may be enforced by punishing him for a contempt of court, without issuing an execution, (Code, § 2555, subd. 4).

The case of The People ex rel. Fries v. Riley (25 Hun, 587), is not in conflict with these views. It does not refer to decrees rendered in surrogates' courts, but to judgments for the payment of money obtained in other courts of record, which can only be enforced by execution against the property in the first instance (Code, § 1240), and, in certain cases, by execution against the person after the return of an execution against property returned unsatisfied, (Code, §§ 487 and 1489).

But while the surrogate may enforce a decree directing the payment of money by an executor, and which relates to the estate of his testator, without issuing an execution, it is discretionary with him to do so, or, to first require the return of an execution against the property of the executor (Code, § 2555, subd. 4), and the manifest spirit of the provisions of the Code on the subject, applicable to other courts, would seem to require that he should not dispense with the preliminary issuing of the execution, without some good reason.

The extraordinary power given to surrogates' courts to enforce obedience to their decrees for the payment of money, by punishing the delinquent for contempt of court, should be exercised in conformity to the liberal spirit of our legislation on the subject of imprisonment for debt, (Doran v. Dempsey, 1 Bradf. 490; Matter of Latson, 1 Duer, 696; Hosack v. Rogers, 11 Paige, 603; The guardianship of Elizabeth Callahan, 1 Tuck. 62).

[5]

In the case at bar, nothing appears to show the necessity or propriety of resorting in the first instance, to the severe measure of punishing the executor for a contempt of court, for the purpose of enforcing the decree made against him, requiring him to pay money,

Estate of King.

which may, perhaps, be collected on an execution against his property.

If the decree in question had been obtained in the supreme court, it could be enforced only by execution, (People ex rel. Fries v. Riley, supra).

[*] There is no hardship, therefore, in requiring the

legatees to issue an execution against the property of the executor, before attempting to enforce the decree by punishing the executor for a contempt of court, in the absence of any reason shown for a contrary course. [] The proceedings must be dismissed with costs. Decree to be settled any Monday on three days' notice.

ESTATE OF GEORGE KING, DECEASED.

SURROGATE'S COURT, COUNTY OF NEW YORK; May, 1882.

S$ 525, 2534.

Verification of petition.- Taking of affidavits by notaries public of New York and Kings counties out of their own counties.- What must appear on

face of affidavit so taken.—What is a sufficient verification.

Chapter 703 of the laws of 1872,* authorizes the notaries public of the counties of New York and Kings to exercise their functions in either of those counties; and, in the case of affidavits, if the same are sworn to before such a notary out of his own county, merely requires that there should appear somewhere upon the face of the paper the name of the county for which the notary was appointed, and none of the amendatory acts have imposed any additional restrictions in regard to affidavits.

*It was held in Produce Bank, etc. v. Baldwin (49 How. 277, 278), that chapter 807 of the Laws of 1873 made the filing of a certified copy of his appointment, by the notary, a condition precedent to the exercise of any of his functions in any county other than the one for which he was appointed, and repealed, by implication, so much of chapter 703 of the Laws of 1872 as was in conflict therewith. But see the points of counsel for the petitioner in Estate of King, supra.

Estate of King.

State of New

Where, in the verification of a petition, the venue was, York; City and County of New York, 88." and the jurat, "Sworn to and subscribed before me, this 25th day of March, 1882; Thomas J. Clute, Notary Public, Kings Co., N. Y.,"- Held, a sufficient verification, although the jurat did not show that the notary had filed his certificate in the city and county of New York.

Motion to set aside a special proceeding, on the ground of insufficient verification of the petition.

The proceeding was brought by a judgment creditor to compel the executors to file an inventory and account, and the executors moved to dismiss the same on the ground, that the petition was insufficiently verified, in that the venue of the verification was, "State of New York; City and County of New York, ss.," and the jurat, "Sworn to and subscribed before me, this 25th day of March, 1882. Thomas J. Clute, Notary Public, Kings Co., N. Y.;" and that it should have been made to appear upon the face of the verification, that the notary was, by the filing of his certificate in the county of New York, authorized to exercise his functions in such county. As a matter of fact, the notary had filed in the clerk's office of the county of New York, a certified copy of his appointment.

M. A. Quinlan, for executors.

S. F. Higgins & G. M. Clute, for petitioner: Urged that the only requirement of chapter 703 of the Laws of 1872, was, that the name of the county in and for which the notary had been appointed, should appear upon the face of the affidavit; that it was not necessary when such a notary exercised his functions without his own county, for him to state that his certificate had been filed in the county wherein he was then exercising his functions; and that chapter 807 of the Laws of 1873, as amended by chapters 105 and 458 of the Laws of 1875, had made no change in this respect.