Majority
p. 674In the Matter of the Estate of Mary Emily Hull, Deceased. Helen Maxwell Williams, Appellant; James Hull, Executor, Respondent. Third Department, June 25, 1907.
Headnote
Surrogate — correction óf decree.The modification of a surrogate's decree requiring that certain property be ■paid over by an executor so .as 'to allow the executor to file a supplemental account on which.may be determined his commissions and allowances, if any, ' for "necessary expenses, etc., isno't prejudicial to the party to whom the moneys, are to be paid, for there is nothing in such amendment which permits the surrogate .to .allow any unauthorized disbursements by jibe executor, and the party to whom the moneys are-to he paid will have full opportunity to Contest the ■accounts, •
Appeal by Helen Maxwell Williams, a residuary legatee under the last will, and testament of Mary Emily -Hull, deceased, from an' order of the Surrogate’s 'Court of the county of Fulton, entered in said.Surrogate’s Court on the 15th day of April, 1907.
• -The order appealed from states that,it is made to.correct.a decree made in this matter on July 28, 1905, It was made after such decree had been affirmed on appeal by this court and by the Court
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of"Appeals. The correction, however, did not in. any way involve anything passed upon by the appellate courts. Such decree contained a provision that the executor should pay over to said Helen Maxwell Williams, the .contestant, all sums of interest, income or other accretion to the estate which shall come to his hands subsequent ■to the verification of his account, “ provided, however, that the amount so remaining (if any) of such interest) income- or other accretion or property shall be - determined and adjudged, together with the ■■commissions and allowances for necessary expenses due said executor on account thereof by supplementary account to be made and filed by him herein.” The order- appealed from, which was intended to correct such decree,.provides “that the said executor shall file a supplemental account of all his acts, transactions, receipts and disbursements made on .behalf of said estate since the filing of his account herein January 2, 1903, in order that the .amount remaining of said estate, property and income together with the commissions and allowances, if any, for necessary expenses due said executor may be heard, adjudged and determined so that he may pay- and deliver the' same to Helen Maxwell Williams, and that the surrogate may' pass upon said supplemental account the same as upon an original final accounting.”
Frank Talbot, for the appellant..
Andrew J. Nellis, for the respondent.
The correction or modification was apparently made because the respondent believed that the words “ on account thereof” contained in the decree as entered, limited the surrogate, upon the supplemental account directed to be filed by the executor, to allowing such expenses only as related to the interest, income or accretion of the property and prohibited the allowance of any other expenses in the management of the estate subsequent to the- former accounting. If there have'been any. legitimate or lawful expenses incurred by this executor .subsequent to that date, we see no reason why the surrogate should not pass upon them in the supplemental account, nor do we conceive how the appellant.is aggrieved By the order appealed from. Counsel for the appellant seems .to fear that It'was
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.the purpose of the- older to. procure 'the allowance to the executor and the -payment out of the. estate of large sums for counsel fees and expenses i-ri the litigation, which' the executor lias- had with this appellant'in endeavoring to. procure a substantial proportion of the estate for himself in reduction of her share. It is unimportant for us .to consider .here whether these-fears are. well founded .or not for the-reason that any claim of that kind on his part 'must first he'presented in his supplemental account to the surrogate. where the appellant, if she contests-the account,, will have full, opportunity to be heard in- opposition thereto, and where the surrogate must then pass, in the first instance, upon the question as. to- whether any . charges or expenses, of that -or any; other character there included are legal and proper charges, against the estate. - There, is nothing' in the order appealed from which will permit- the surrogate, if he w'as-.so- inclined, to allow any expenses of .'any other character to be paid out- of this estate.. ' The .-order simply permits him to pass upon, any claim for necessary expenses: due said executor that may be presented,, but gives, him no authority to- allow ati.y improper or illegal .claims. For these reasons-the order should he affirmed, with ten dollars costs and disbursements. ■
, All Concurred.
Order affirmed, with ten dollars-costs and disbursements.