Kleinberg v. Dobkin

YORK, P. J.—This

is an appeal by an objecting creditor from an order and decree of final distribution entered after hearing had by the court upon a petition for approval of the final account and for order of distribution, to which

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petition the said objecting creditor as a creditor and person interested in the estate interposed objections to the approval of the final account and to a decree being entered in accordance with said petition.

The basis of the objection was that the estate was insolvent and that the petition for final distribution requested the approval of two claims which had been filed in the course of administration by the two sons of decedent by a former marriage, to wit: Rubin Dobkin for $2,055.42 and Lazarus Dobkin for $2,701. These claims were duly verified in the usual form and were based upon an alleged promise of decedent to repay sums of money advanced by said sons to the decedent, which sums, it was alleged, he promised to pay upon the sale of a certain hotel property. This property was. not sold during the lifetime of decedent, but was sold in the course of administration of his estate.

The claims were first rejected by the executrix of the said estate, who thereafter resigned and was succeeded by one Samuel Dobkin, as administrator with the will annexed, who in turn filed the final account and report and petition for distribution herein. After the disallowance of the claims by the executrix, suits were filed by the claimants against the said executrix who filed answers therein. Thereafter, the executrix petitioned the court for permission to approve the said claims thus sued upon. Said petition was duly verified and filed and came on regularly for hearing after notice was given as provided by law, and the court on July 28, 1938, granted the same and both claims were thereupon approved. No attack of any kind was made upon said order, no petition for a rehearing was made, and no appeal was ever taken therefrom.

The question now before this court is whether or not, upon the settlement of the final account of the administrator with the will annexed, it was proper for the probate court to order distribution of the estate decreeing the two claimants to be in the same creditor class as the objecting creditors Mrs. Rose Kleinberg and Mrs. Kate Noak, whose claim by reason of the approval of said account was reduced to the sum of $307.83, their original claim having been allowed and approved for the sum of $1340.20. The claim of respondent Rubin Dobkin was reduced to the sum of $472.06, and Lazarus Dobkin’s claim was reduced to $620.35, these