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In re Schlosser

116 N.Y.S. 794 Court N.Y. Sur. Ct. Decision date 1909-03-15 English

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p. 794
In re SCHLOSSER.
(Surrogate’s Court, Westchester County.
March 15, 1909.)

Headnote

Executors and Administrators (§ 315[1] )—Distribution of Estate—Decree of Distribution.'
Where all persons interested in a decree of distribution are represented by attorneys at the hearing, and the decree made was by consent of all, one of the persons interested cannot thereafter have the decree reopened because of a mistake by his attorney in the law governing the distribution of estates, as his relief is by appeal from the decree, although Code Civ. Proc. § 2481, gives a surrogate power to open, vacate, modify, or set aside the decree of his court.
[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 1305; Dec. Dig. § 315.*]
In the matter of the settlement of the account of Francis Schlossery administrator of the estate of Elizabeth Schlosser, deceased.
Motion to open and modify decree denied.
p. 795
Emile A. Hassey, for petitioner.
Thornton & Earle, for Lawrence Schlosser, Clara Schlosser, and Marie Hicks.
Wilson & Wallis, for Ralph L,. Raymond and others.

This is a motion made on behalf of Francis Schlosser, Louis Schlosser, and Bernhard Hoff, first cousins of the deceased, to reopen and resettle decree dated May 4,1908, and entered May 9, 1908, by changing therein the distribution made of the estate in that decree. The grounds urged in behalf of the motion are as appears from the petition verified ^November 16, 1908:

“That since the making and entering of said decree petitioner has been informed by his attorney, Emile A. Hassey, and verily believes it to be true, that his said attorney was mistaken as to the law applicable to the distribution of •said estate, and that said decree was entered upon the erroneous interpretation of the statute of distributions by his said attorney, in that said attorney was then of the opinion that the law directed the distribution of said intestate’s estate to and among her cousins of the first and second degree, and that in said distribution the second cousins took by representation the share of their deceased parent ancestor; that this was the view also held by the other attorneys who appeared in this matter, and the decree herein was prepared and entered by petitioner’s attorney accordingly, the said other attorneys assenting thereto ; that, as deponent has since been informed by his said attorney, by an amendment to the statute of distribution of intestates’ estates, viz., section 2732, subd. 12, of the Code of Civil Procedure, no representation shall be admitted among collaterals after brothers and sisters descendants,. which went into effect May 12, 1905, the second cousins of said deceased were barred ■out and excluded from participating in the distribution of said intestate’s personal estate, and that therefore the second cousins of said deceased, namely, Lawrence Schlosser, Clara Schlosser, Marie Hicks, Ralph L. Raymond, Cortland S. Raymond, and Marie A. Zuber, were not entitled tó any portion or interest in the personal estate of said Elizabeth Schlosser, deceased, but that the ■entire personal estate of said decedent is distributable only amongst the first -cousins of said decedent.”

Whether, as a matter of law, the distribution made in the decree is ■erroneous and wrong, owing to a mistake in the construction of the law, is to my mind at this time immaterial. The fact's are that the decree referred to was presented to the court by the attorney for the petitioner in this proceeding; that said attorney also represented, as was conceded on the argument, the other parties who would be benefited by the change asked if the motion were granted. Upon the return day of the ■citation, not only the attorney for the petitioner and the others above mentioned appeared, but Messrs. Wilson & Wallis also appeared for ■Cortland S. Raymond, Ralph L. Raymond, and Mary A. Zuber, second cousins of said deceased, and two of the other second cousins filed waivers of the issue and service of citation and consented to the ent'ry of a decree settling said account as filed. It also appears, from the affidavit of Lawrence Schlosser, one of the second cousins of said intestate, that Emile A. Hassey also appeared and acted as attorney for him and his two sisters, Clara Schlosser and Marie Hicks, so that on the return day of the citation to attend the accounting of said administrator all of the parties were represented by attorney, and the said decree was settled upon notice to them, and by consent of all parties was made, as all of them then believed, in accordance with the law.

p. 796
The attorney for the petitioner now claims that he was mistaken in this respect, although it is still urged by Messrs. Wilson & Wallis and by Messrs. Thornton & Earle, who appear for all of the second cousins, that the original decree was correctly, made in accordance with a proper construction of the statute. Under this state of facts it is clear that, if any error has been committed, it is as to the construction of the law upon this subject, and is a matter which should be reviewed by appeal, and not by a motion to open and modify the decree, because the error, if any exists, is an error of substance, and not a clerical error, and is an attempt to review the decision upon the merits. That this cannot be done is clearly held in Matter of Tilden, 98 N. Y. 434 , Matter of Hawley, 100 N. Y. 206 , 3 N. E. 68 , Matter of Henderson, 157 N. Y. 423 , 52 N. E. 183 , and In re Ahlers’ Estate (Sup.) 104 N. Y. Supp. 529 .

It appears from the petition filed on this motion that all of the payments to the second cousins provided for in said decree have been made, and upon the argument of this motion it was stated that several of them had already expended their money, and that it would be impossible for them to return it if the decree was modified or changed. While this may not affect the merits, it' certainly should be considered in exercising discretion, if any existed, as is claimed by those in support of the motion, although I do not believe that it does exist. This motion, of course, is made in accordance with the provisions of section 2481 of the Code of Civil Procedure, which has been construed and passed upon in the cases above stated, and does not authorize a surrogate to interfere with such a decree as was made in this case upon the-grounds asked for.

The motion to open and vacate the decree is therefore denied.

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