In re Carr’s Will. In re Tompkins’ Estate.(Supreme Court, General Term, Third DepartmentHeadnote
Opening Surrogate’s Decree—Pleading—Evidence.A petition to open a decree of a surrogate, finally settling the accounts of am executor, alleged neither fraud, newly-discovered evidence, clerical error, nor other cause, (Code Civil Proc. § 2481,) except a mistake of the executor and his-attorney as to a matter of law; the allegations of the petition were denied, and plaintiff offered no proof to sustain them. Meld, that the surrogate erred in opening the decree. In re Éstate of O’Neil, 46 Hun, 500 , followed.
.Appeal from surrogate’s court, Saratoga county.
Application by Clarence G. Carr, executor of John T. Carr, deceased, to reopen a decree finally settling the accounts of said John T. Carr as executor of the estate of Susan B. Tompkins, who died in 1885, leaving a will, by the-last clause of which she appointed John T. Carr her executor, and directed! that “he be paid reasonable and liberal compensation for his services, as welB as his fees allowed by law.” Carr, the executor, qualified and executed tli® will, and applied for a judicial settlement of his accounts; and on the 2d day of July, 1889, a decree was duly made and entered by said surrogate, which finally and judicially settled his accounts as such executor, and allowed him for his commissions the sum of $138.32, and for his costs and disbursement® the sum of $50, and further, “for his additional compensation and other expenses under the will, the sum of $250.” Thereafter, John T. Carr dieds and on the 28th day of November, 1891, more than two years after said final decree was signed and entered, Clarence G. Carr, as his executor, presented! to said surrogate a petition signed by W. B. French, which stated, in substance, that said John T. Carr had rendered services for the estate of said? Susan B. Tompkins, for which he had not been paid, to the amount of over $3,000; that said $250 allowed in said decree as additional compensation was-not intended as a final adjustment and allowance of the claim of said Joint. T. Carr; and that, if the language used be so construed, it was a mistake-on the part of the attorney who drew the decree,—and the petition prayed! that said decree be opened to permit said claim to be proved. The application was granted on petition and answer, without proof, and the administrator c. t. a. and heirs at law of Susan B. Tompkins appeal.
Argued before Mayham, P. J., and Putnam and Herrick, JJ.Brackett, Butler t§ Baucus, (Edgar T. Brackett, of counsel,) for appellant. French & Smith, (W. B. French, of counsel,) for respondent.
We think the order of the surrogate, from which the appeal! is taken, should not have been granted. The power of the surrogate to open and modify a decree, and of the general term on the appeal from his order, in such a case, is conferred by subdivision 6 of section 2481 of the Civil Code, as follows: “(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-case 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.” The petition upon which said order was granted does not set out any facts showing fraud, newly-discovered evidence, clerical error, or other sufficient cause to open the decree, within the meaning of the above-quoted section of the Civil Code. The intent of the attorney on the former accounting is.