In re Malone

The bill of the undertaker, Owen J. Malone, the administrator, is perhaps a fair sample of the proceedings in this estate. It is $1,326.-56 by separate bill. In addition, he has credited himself in his first account with $20 paid to bearers at funeral, $10 for opening grave, and $25 paid St. John’s Church for burial services, the items amounting to $55, making and swelling the total funeral expenses to $1,381.-56. The largest items are:

6/3 solid mahogany casket, lined with satin, honeycombed and silk

pillow, oxidized extension handles with engraved plate...........§850 00

Burglar proof metallic grave vault................................. 250 00

The grim irony of the bill is shown by the fact that the inventory sworn to by this administrator shows as the only items of clothing found in her residence and inventoried of this old lady the following:

One lot of clothing, old (junk).................................... 10 cents

Underwear pieces and two towels in bureau drawer............... 5 cents

.Yet in his bill this administrator charges the following items:

Black silk dress...................................................... §75

Underwear, stockings, skirts.......................................... 10

Slippers .................... 5

This old lady in life had fifteen cents worth of clothes. At her death this self-created administrator swears he placed upon her body

One Dr. William S. Bristol presented a claim against this old woman’s estate for $1,966 and was allowed in full this amount for services attending this old lady for practically six years prior to her death. One physician was sworn who testified that he had attended this old lady at practically the same time. Dr. Bristol was not attending Mrs. Grimes at the time of her death and had not for some little time prior thereto.

One Mary Elwood, a tenant of this Catherine Grimes in the house in which Mrs. Grimes lived, presented a bill for $1,000 and was allowed $500, although she testified that she had paid her rent regularly. Dr. Bristol testified for Mrs. Elwood’s claim, and Mrs. Elwood testified for Dr. Bristol’s claim.

Timothy E. Roland was allowed $2,200 as and for his allowance as attorney for the people of the state of New York in this proceeding. The Attorney General says there is no legal warrant for such an allowance, and I have been unable to find any. It does not appear that Roland took any part whatever in opposing the allowance of these bills to either the undertaker, Dr.'Bristol, or Mrs. Elwood.

John E. Brady was appointed by the Surrogate special guardian for certain infant unknown heirs at ljiw and next of kin of "said Catherine Grimes, deceased, the Surrogate’s order appointing him reciting that such unknown infants had no general guardian, and was allowed by the Surrogate as such special guardian $250.

For quite a period of time George Addington represented the administrator, and the administrator placed in his first account filed the following item:

“May 22. Paid George Addington, legal services, $750.00.”

That is the only claim presented on behalf of George Addington.

In his supplemental account of proceedings, the administrator included this item:

“June 4, 1910, paid John J. McCall for legal services, counsel and advice in the preparation of account of proceedings herein for services rendered on the accounting herein, in the matter of disputed claims on the accounting herein, in the matter of proceedings to establish the kinship herein, in the matter of withdrawal of certain claims presented herein, in the matter of action in Supreme Court of Patrick Grimes v. Owen J. Malone, as administrator, and Albany City Savings Institution, in the matter of the action of Patrick Grimes against Owen J. Malone, as administrator, and the National Savings Bank, involving two bank accounts, in the matter of the action of Patrick Grimes against Owen J. Malone, and Albany Savings Bank, involving two bank accounts, and in professional services generally in connection with the account of proceedings of Owen J. Malone, as administrator of Catherine Grimes, deceased.............................$5,700.00.”

This item was objected to by the attorney for a claimed relative of the intestate, as were many other items; but, on the ground that this claimed relative was not in fact found to be a relative, the Surrogate declined to .consider these objections. This $5,700 is objected to by the Attorney-General as being-exorbitant, illegal, improper, and that-the Surrogate had no jurisdiction to allow the same, at least in the amount allowed.

The remainder of this personal estate is payable to the State Treasurer under section 2747 of the Code of Civil Procedure which, so far as material, is as follows:

“Sec. 2747. Legacy, etc., to Unknown Person to Be Paid Into State Treasury. Where the person entitled to a * * - distributive share is unknown, the decree must direct the * * * administrator to pay the amount thereof into the treasury of the state, for the benefit of the person or persons who may thereafter appear to be entitled thereto.”

The section farther provides for the payment of this amount to the rightful claimants thereto after “deducting all expenses incurred by the state with respect to the decedent’s estate.”

Now it is claimed by the Attorney General that the state is interested here as a trustee for unknown next of kin, that the Attorney General could not consent to any of these attacked allowances, that they were all grossly excessive so far as the allowances to attorneys were concerned, and that claims were allowed without proper proof, and that the representative of the Attorney General and the administrator had not properly protected the interest of the people of the state as such trustees. It is alleged in the moving affidavit that, if given the opportunity, it can be shown that certain of the claims allowed were unfounded, spurious, and illegal, and also that the allowances were excessive, exorbitant, and some of them without any authority whatever in the statute.

See Matter of Hodgman, 82 Hun, 419 -425, 31 N. Y. Supp. 263 , 267, which says:

“A decree * * * that has only been permitted to remain in force as a decree, because no one who was injured by its errors made objection to it, now that such injured parties do appear and ask to be heard, and give reasons why they have not heretofore made their objections, the court will not, under the circumstances, be curious to find reasons or eases to permit it to remain longer in force and deprive the petitioners of the opportunity of asserting their claims.”

Authority for the motion made is claimed under subdivisions 6 and 11 of section 2481 of the Code of Civil Procedure and also under the inherent authority of a court of record, even a court of limited jurisdiction like the Surrogate’s Court, to right a wrong which has been perpetrated under the forms of law. Section 2481, so far as material, is as follows:

' “Sec. 2481. Incidental Powers of 'the Surrogate. A surrogate, in court or out of court, as the case requires, has power: * * * (6) To open,

vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision, must be exercised only in a like ease and in the same manner, as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the Surrogate, made upon an application pursuant to this subdivision, the general term of the supreme court has the same power as the surrogate; and his determination must be reviewed, as if an original application was made to that term. * * * (11) With respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court, having, by the common law, jurisdiction of such matters, except as otherwise prescribed by statute; and to exercise such incidental powers, as are necessary to carry into effect the powers expressly conferred.”

The Attorney General claims that there was collusion in the nature of fraud between certain of the parties here and that the Surrogate’s Court was imposed on and deceived.

Matter of Hodgman, supra, also says:

“Matters then in the nature of a fraud, although not actually, perhaps, constituting a fraud in law, or which would be the basis of an action for fraud, yet matters of that character which have misled the petitioners, and by which they have been prejudiced, may be sufficient ground to authorize the Surrogate, or this court in reviewing the action of the Surrogate, to act under this section.”

Matter of Hodgman is a case which bears some resemblance to the case at bar and the application to open, vacate, and set aside the decree was denied by the Surrogate and granted by the General Term in this department.

In Matter of Regan, 167 N. Y. 338 -343, 60 N. E. 658 , 659, it was held as follows:

“The Surrogate’s Court has power independently of any statute to exercise control over its own records and to vacate its own decrees for mistake, fraud, or clerical error. It must be deemed to possess the incidental powers in that respect common to all courts or officers exercising judicial functions.” And see cases there cited.

The representative of the people of this state says that the interests of the people as trustees for the unknown next of kin of Catherine Grimes were not properly protected in this proceeding.

It is an application addressed to the conscience of the court on an allegation that a party or parties relied upon to protect the interest of the people of the state had failed to do his or their duty, and that upon the first knowledge coming to the Attorney General of such dereliction of duty a motion was made with reasonable promptness to open this decree, to the end that errors might be corrected, justice be administered, and the property rights of the unknown next of kin of Catherine Grimes protected. Upon such an application the court should not be alert to inquire or seek to find reasons for denying such an application, but the decree should be opened. If it should finally be determined that the Attorney General was mistaken, full redress can be obtained in this estate by those who may be inconvenienced by such holding.

I think that the evidence in this case presents such a state of affairs as should lead! this court to open this decree so far as it affects the allowance of the following claims: Owen J. Malone for funeral expenses, $1,381.56; Mary Elwood, $500; William S. Bristol, $1,966. And the allowances to counsel: John J. McCall, $5,700; John E. Brady, $250; and Timothy E. Roland, $2,200—with the costs and disbursements of this appeal to the people of the state of New York payable out of the fund. All concur; HOUGHTON, J., in part, in opinion.

(concurring in part). I do not think sufficient was shown before the Surrogate to authorize a reopening of the decree with respect to the claims of William S. Bristol and Mary Elwood. The claims of the administrator -and the various attorneys rest upon an entirely different footing from that of those two claimants, and I entirely agree with Mr. Justice BETTS that there should be a rehearing with respect to them.

Bristol and Elwood presented their claims to the administrator and he rejected them. Under the provisions of. section 1822 of the Code of Civil Procedure, the claimants filed a stipulation with the Surrogate consenting that their claims be heard and determined by him upon the judicial accounting by the administrator. They could have brought actions. Before the Surrogate was given power to pass upon disputed claims, the practice was to take a reference, and any judgment obtained thereon had the force of a judgment of the Supreme Court. The allowance of a disputed claim by the Surrogate is in the nature of a judgment and should have the same force and effect as though allowed upon a reference and is equivalent to a judgment obtained pursuant to action. The fact that the claims so allowed were large, or even much too large, does not authorize a reopening of the decree with respect to them. Some fraud or undue advantage in obtaining the judgment and decree must appear else the decree must stand. No sufficient facts are shown which authorize the vacating of the findings and decree allowing these two claims. All parties were represented, witnesses were sworn and cross-examined, and the Surrogate made his findings of fact and conclusions of law in the most formal manner.

If the interested parties, including the state of New York, were dissatisfied, they should have appealed. These two claims as allowed should be permitted to stand. Otherwise the decree should be reversed, and a rehearing had as indicated in the opinion of Mr. Justice BETTS.