St. Repr. 730; Matter of Townley, 1 Connoly, 400; Matter of Wilcox, 14 N. Y. Supp. 109; Matter of Lantry, 5 id. 501; Matter of Frey, 2 Connoly, 70.

In view of all the circumstances attending the execution of the will, the long lapse of time intervening since its execution, the business ability and capacity of the testatrix at the time, the fact that the will was prepared and executed under the superintendence of an attorney; the fact that the terms of the will appear to be reasonable and equitable, and that it does not appear that the testatrix has ever made any subsequent will, or in any manner attempted to modify the terms or provisions of the will in question, all lead to the conclusion that this will should not be defeated in consequence of the mere lack of recollection on the part of the attesting witnesses as to the fact of publication and request; especially in view of the fact that the attestation clause, signed by these witnesses at the time the transaction occurred, recites the fact that such publication and request were properly made.

The will should be admitted to probate, and the objections filed to probate disallowed. A decree will be entered accordingly.

Decreed accordingly.

Matter of the Estate of JOHN C. MILES, Deceased.

(Surrogate's Court, Erie County, Filed November, 1900.)

1. JURISDICTION-SURROGATE TO DETERMINE WHETHER A CLAIM AGAINST A DECEDENT HAS BEEN DISPUTED OR REJECTED.

A surrogate cannot, except by consent, try a disputed claim against the estate of a decedent, but he has power to determine whether the claim has been disputed or rejected by the administrators of the

estate.

2. SAME EFFECT OF RECOGNITION OF CLAIM BY ADMINISTRATRIX AND SOLE DISTRIBUTEE-Waiver of DEFENSES.

Where an administratrix, who is sole distributee of an estate having no creditors, recognizes a claim against her intestate by inducing and permitting a partial payment to be made upon it and subsequently shows the payment in her final account, she cannot defeat a subsequent application for full payment by insisting that the claim has never been formally presented to the administrators, nor can she then set up the Statute of Limitations as to the cause of action upon which the claim was based.

Reversed, 61 App. Div. 562; again reversed, 170 N. Y. 75.

Proceeding upon the petition of claimant for an order directing that the decree of settlement heretofore made be opened and that the administrators be directed to pay her claim.

Henry L. Steiner, for claimant-petitioner, Mrs. Rose Leroy; David C. Millar, for administrators.

MARCUS, S.-This proceeding arises upon the petition of the claimant for an order directing that the decree of settlement heretofore made be opened, and that the administrators be directed to pay her claim.

The real issue in this proceeding is to determine whether the petitioner's claim has been admitted or rejected by the administrators.

This court has no power to inquire into the merits of a disputed claim, and is utterly devoid of jurisdiction to determine the validity of an alleged creditor's disputed claim against a decedent's estate, except as provided by section 1822. Yet, the mere allegation that one is a creditor of the estate is conclusive for the purpose of entitling him, under section 2728 of the Code, to be heard.

The surrogate has power to determine whether a claim has been admitted or rejected by the accounting executor. Bowne v. Lang, 4 Dem. 350; Matter of Von der Lieth, 25 Misc. Rep. 255.

(( Whenever any person claims to be a creditor of an estate,

and as such insists upon his right to become a party to a contest over the correctness of its executors' accounts, that right should be accorded to him as of course. Possibly, the presentation of a demand which, upon its face, is discovered to be absurd, illegal, or, for any reason, worthless, may furnish an exception to this rule. But, as the surrogate has no authority to adjudicate finally upon the validity of an alleged creditor's disputed claim, it seems little short of absurdity to contend that he may adjudicate preliminarily so far as to shut out such claimant from taking any part in a contested accounting, and to hold that the mere refusal of the executor to recognize one as a creditor is necessarily a bar to his participating in such contest, is absurdity itself." Matter of Greene v. Day, 1 Dem. 51.

I think it was proper to open the decree and give the petitioner an opportunity to be heard upon the acceptance or rejection of her alleged claim, since there is no dispute as to her failure to receive notice of the settlement.

It is urged that since no written proof of claim was ever presented, no claim upon the part of this petitioner could have been accepted or rejected.

It needs no argument to make clear that the purpose of exhibiting claims against an estate to an executor or administrator is to enable him to adjust claims without the expense of compulsory proceedings in court, to relieve him of doubt and acquaint him with such facts as may lead him to accept or dispute the justice of the claim. If he is satisfied of the justice of the claim by his own knowledge, or any form of evidence, which, in good faith, he deems sufficient, he may allow the same without the intervention of proceedings in court. Indeed, beneficiaries have the opportunity through the executor or administrator of discharging just claims against a decedent without incurring a bill of costs as incident to an action. In short, the office of proof of claim is to bring to the notice of the represen tatives evidence, from which they may satisfy themselves of its validity.

A copy of the claim in writing may be waived since a literal compliance is unnecessary when the facts of the claim are all within the knowledge of the representative, and have been acted upon and liquidated without any demand for voucher or affidavit.

"The executor or administrator may require satisfactory vouchers in support of any claim presented, and the affidavit of the claimant that the claim is justly due, that no payments have been made thereon, and that there are no offsets against the same to the knowledge of the claimant." § 2718, Code Civ. Pro.

Claims may be presented by letter, or in any way which deals fairly with the executor or administrator, and the estate he represents, and the claimant need not produce vouchers or make an affidavit unless requested. Gansevoort v. Nelson, 6 Hill, 389.

It

The merits of the claim are not for my consideration. appears that directions were given by the intestate to his sister to pay to the petitioner the sum of $3,000 upon the settlement of his estate. It was not a testamentary gift, a causa mortis gift, nor a gift inter vivos. It was a direction that could not be enforced in the law. The administratrix, however, who was the sister of the intestate, and sole distributee, through her attorney, directed him to arrange with the petitioner to accept certain notes and accounts of her intestate and to collect the same for herself, as she, the administratrix, desired to make no enemies amongst her neighbors in so doing, and agreed that the difference between the $3,000 and the amount collected from these notes and accounts, she would pay to the petitioner upon the settlement of the estate. Accordingly, the notes and accounts were given to the petitioner, and collection of same proceeded with. It resulted in securing to this petitioner the sum of $1,279.78.

The account filed by the administrator upon the settlement

of their accounts shows a payment to the petitioner in the sum named.

It, therefore, seems that this claim was recognized and accepted by the administratrix, and formal proof of claim in writing waived, even if the same was a necessary precedent on the part of this petitioner, and to the extent of the balance, namely, $1,720.22, must be treated as a liquidated and undisputed debt which this administratrix is bound to pay.

It has been urged that there is no debt against this estate upon the facts shown, and which are undisputed. That the intestate's directions to his sister-this administratrix-created no debt against his estate. That the services rendered for which the intestate was moved to direct the payment of the $3,000 are barred by the Statute of Limitations.

It would seem that this administratrix recognized the claim of this petitioner, and admitted the same by actually paying petitioner and crediting herself in her accounts upon the settlement of this estate to the extent of $1,279.78.

It does not appear that this administratrix was confronted with a demand by the petitioner. It, however, does clearly appear that the administratrix recognized a claim or demand of some kind which she regarded as valid, and proceeded upon her own motion through the aid of her attorney to arrange for the payment of the same without demand for vouchers or affidavit from the petitioner, claimant.

If the demand was just, the administratrix was bound to pay; if unjust, to resist payment. Her course makes clear that she regarded it as a just claim and made what resulted in a considerable payment upon the same.

"The mode of adjusting claims against an estate is specifically prescribed. They must be presented to the executors or administrators, and, if allowed they are established; if disputed or rejected they may be referred, and if not actions may be brought in the courts having jurisdiction." McNulty v. Hurd,

72 N. Y. 520.