Maze v. Brown — 2 Dem. Sur. 217

Majority

p. 217

New York County.—Surrogate.

Hon. D. G. ROLLINS,

April, 1883.

Maze v. Brown. In the matter of the estate of William E. Lawrence, deceased.

Headnote

The accounting and delivery compellable under Code Civ. Pro., § 3606,^[1] from the personal representative of an executor dying, are for and of such of, the trust property only as has come into the possession or is under the control of that representative.

An administrator with the will of the first decedent annexed cannot in his official capacity, as a creditor of his decedent’s executor, call the latter’s representative to account, under the provisions of the section cited.

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Petition by Abraham Maze, administrator with the will of decedent’s testator annexed, to compel Edward F. Brown, and another, decedent’s executors, to account, etc.; the object being to compel payment to petitioner of a balance alleged to be due and unpaid to petitioner, as such administrator, upon a decree against decedent and another in their executorial capacities. Further facts appear in the opinion.

Smith & Woodward, for petitioner.

E. F. Brown, for respondents.

Abraham Maze died in 1875, leaving a will whereby he appointed Washington Brockener and William E. Lawrence his executors. In 1880, they accounted as such, and a decree was entered whereby they were adjudged to have in their hands property of the estate amounting to $1,873.68, and were directed to distribute the same according to the provisions of decedent’s will.

Both executors have since died without making such distribution. This petitioner now holds letters of administration, with the will annexed, upon the estate of Abraham Maze, and he asks, after alleging, upon information and belief, that the said property was in the custody and under the control of his predecessor, Lawrence, at the time of his death, that the executors of Lawrence account for said property, and deliver the same to him the petitioner.

The petition does not aver that any of the assets of the estate of Abraham Maze have come to the possession of the respondents or are under their control. It does

p. 219

not, therefore, allege the facts necessary to authorize the granting of the relief asked under § 3606. It is not all trust property, in the hands of an executor at the time he dies, for which such executor’s personal representatives can be called to- account by such executor’s successor and which he may be compelled to deliver to him; it is such property only as has come to the possession or under the control of such representative himself. The petitioner, in his capacity of administrator, may as a creditor of the estate of William E. Lawrence, cite his executors to an accounting, but that is not what he seeks to do by this proceeding. Aside from any other considerations growing out of the facts presented on the motion papers, this petition must therefore be denied (Dakin v. Demining, 6 Paige, 95 ; Montross v. Wheeler, 4 Lans., 99 ).