In re the Judicial Settlement of the Estate of Gray

Thé judgment of the Supreme Court was binding upon the Surrogate’s Court. The appellant held claims, as she alleged, against *413the estate of Charles B. Gray. The administrators rejected the claim. It was referred, under the statute, and it appeared that the appellant had indorsed and become surety upon papers made by Charles B. Gray and G. C. Lockwood. They were partners, and intended’to use the money in their business, and did so. The referee reported that the claim was a claim against the estate oi Charles B. Gray, and entitled to share with the individual creditors of the deceased. This report was confirmed by this court. The statute is very general in respect to claims against deceased persons, but broad enough to determine whether a creditor was entitled to share with the individual creditors of deceased, or whether the claim was one which must await the payment in full of partnership debts before it was entitled to payment out of the assets. Besides this, it was the very thing submitted to the referee by both parties, by consent to adjudicate upon her claims against the estate, and the adjudication in a court having jurisdiction of the subject-matter and the parties was binding, and could only be reviewed by appeal. (Fisher v. Hepburn, 48 N. Y., 41.) It was as valid as if commenced by ordinary process. (2 R. S., 89, § 37.)

As to the $2,000 note, the appellant was a surety. It was a joint and several note, and when the surety paid it she took the place of the debt, as one against the individuals who made the note and each of them.

The decree should be reversed and the proceedings remitted to the Surrogate’s Court, with directions to allow the appellant’s claim as an individual debt against the estate, with costs to appellant out of the estate..

(dissenting):

On the reference under the statute the order of distribution of the assets of the estate was not in question. That was not a question which the administrator could legally submit in that proceeding, and what was done in that respect was not binding on the other creditors. They now have, for the first time, the opportunity to be heard. The jurisdiction of a court to render a judgment can always be inquired into.

The decree of the surrogate should be affirmed.

*414Decree of surrogate reversed and proceedings remitted, to tbe end that this appellant’s claim be allowed as an individual debt. Costs of the appellant out of the estate allowed on appeal.