In re Hyams' Estate

• Decision Date: 27 December 1923
• Citation: 237 N.Y. 211,142 N.E. 589
• Parties: In re HYAMS' ESTATE.
• Court: New York Court of Appeals Court of Appeals

237 N.Y. 211

142 N.E. 589

In re HYAMS' ESTATE.

Court of Appeals of New York.

Dec. 27, 1923.

In the matter of the discovery of the assets of Henry Hyams, deceased. Proceeding by the Kings County Trust Company, as executor, against Sophie Hyams, widow of the deceased, to discover property of the deceased withheld by widow. From an order of the Apppellate Division (205 App. Div. 893,198 N. Y. Supp. 922; 206 App. Div. 670,199 N. Y. Supp. 928) modifying a decree of the Surrogate's Court, and as modified unanimously affirming it, both parties appeal. Order of Appellate Division affirmed in part and reversed in part.

Decree of Surrogate's Court in so far as reversed by Appellate Division affirmed.

The following questions were certified: ‘1. In the circumstances disclosed by this record, did the surrogate have jurisdiction to hear, try and determine the question whether there was a valid gift of the bonds enumerated in the petition other than the Westinghouse bonds?

‘2. In a discovery proceeding under sections 205 and 206 of the Surrogate's Court Act, where negotiable securities which are the subject of the proceeding and itemized in the petition are not in the possession of the respondent at or subsequent to the commencement of the proceeding, and when the answer sets up and the evidence establishes such fact, and when the answer also sets up title as to such negotiable securities in the respondent at and prior to the death of the petitioner's estate, and when respondent holds other and totally distinct negotiable securities purchased with the proceeds of the sale of the securities so disposed of; has the surrogate jurisdiction in such proceeding to hear, try and determine the question of title to such securities so disposed of between the respondent and the petitioner's testate?’

Appeals from Supreme Court, Appellate Division, Second Department.

Theodore Kiendl, Lee McCanliss, and Otis T. Bradley, all of New York City, for Sophie Hyams.

George E. Brower, of Brooklyn, for Kings County Trust Co.

McLAUGHLIN, J.

This proceeding was instituted under sections 205 and 206 of the Surrogate's Court Act (L. 1920, c. 928, as amended 1922) for the purpose of ascertaining whether certain specified securities alleged to have belonged to the testator at the time of his death were held by his widow, Sophie Hyams.

Section 205 is entitled ‘Proceeding to Discover Property Withheld.’ It provides that an executor, administrator, or guardian may present to the Surrogate's Court from which letters were issued to him, a petition setting forth on knowledge, or information and belief, any facts tending to show that money or other personal property which should be delivered to the petitioner is in the possession or under the control, or within the knowledge or information of a person who withholds the same from him, or who refuses to impart knowledge or information he may have concerning the same, or disclose any other fact which will aid such executor, administrator, or guardian in making discovery of such property, and praying an inquiry respecting it, and that the respondent may be ordered to attend the inquiry and be examined accordingly, and to deliver the property if in his control. If the surrogate is satisfied, on the papers presented, that there are reasonable grounds for the inquiry, he must make an order accordingly, which may be made returnable forthwith, or at a future time fixed by the surrogate.

Section 206 provides that if the person directed to appear submits an answer denying any knowledge concerning, or possession of, any property which belonged to the deceased in his lifetime, he shall be sworn to answer truly all questions put to him touching the inquiry prayed for in the petition. If it appears that the petitioner is entitled to the possession of the property, the decree shall direct delivery thereof to him. If such answer alleges title to or the right to possession of any property involved in the inquiry, the issue raised by such answer shall be heard and determined and a decree made accordingly.

The Kings County Trust Company, as executor under the last will and testament of Henry Hyams, deceased, presented a petitionto the Surrogate's Court, in which it alleged that $2,000 Westinghouse Electric & Manufacturing Company bonds, and $30,000 United States securities owned by the deceased at the time of his death, were in the possession of Mrs. Hyams, who withholds them from it, and asked that an inquiry be held with respect thereto.

Mrs. Hyams interposed an answer, in which she alleged that the securities in question belonged to her; that they were given to her by her husband; that of such securities she has retained, and still has, the Westinghouse bonds; that the other securities she had sold prior to the institution of this proceeding and with the proceeds derived from the sale purchased other securities, which she now holds.

After a hearing before the surrogate, he held that the Westinghouse bonds were given to Mrs. Hyams by her husband prior to his death; and dismissed the proceeding as to the other securities, declining to make any direction in the matter, evidently upon the theory that the Surrogate's Court did not have jurisdiction to pass upon the question.

Upon appeal the Appellate Division unanimously affirmed the decree of the Surrogate's Court in so far as it related to the Westinghouse bonds, and reversed in so far...