In re Filley's Estate

The first question for examination is the objection that section 780, Code Civil Proc., which provides for shortening the time for notice of motion to less than eight days by an order to show cause, etc., is not made applicable to the surrogate’s court; and subdivisions 4,6, § 3347, of the Code, are cited in support of the position. I am inclined to think that section 780 is not directly made applicable to the surrogate’s court. This section contains the general Code provision upon the subject of time of notice of motion, and provides it shall be eight days, unless, etc. If the section is not applicable to the surrogate’s court, then, in the absence of any other provision, (and I have been able to find none,) a notice of motion in this court could be made without special limit as to time of service of notice, etc. But, in the absence of such provision, perhaps subdivision 11 of section 2481 would apply, which provides, in effect, that where jurisdiction is given in any matter to the surrogate’s court, and the practice is not prescribed, it shall proceed “according

I am satisfied that the next objection of the creditor, that the surrogate has no authority to extend the time of the executor to file his bond beyond the five days provided in the order, is technically well founded. But, while the surrogate may not extend the five days fixed by section 2687 in which to file a bond to six or ten days, he may, in a proper case, under Code, §§ 724, 2538, relieve a party from an order taken against him when he can show it occurred through “mistake, inadvertence, or excusable negligence,” etc.; and the same relief may be obtained in certain cases hereafter mentioned under section 2481, subd. 6, above cited. But under either section relief must be obtained, if at- all, not as a matter of favor, but for the specific reasons or upon the grounds provided in the statute. This disposes of the preliminary objections, and brings us to an examination of the question whether the executor has presented a case authorizing the surrogate to open or modify the decree made herein on the 7th day of May, 1892, adjudging the executor’s pecuniary circumstances to be such as not to afford adequate security for the due administration of the estate of the deceased, and requiring him to file a bond in the penal sum of $32,000 within five days, or, in default thereof, that his letters testamentary lie revoked. Section 2687 of the Code of Civil Procedure provides that if, upon the return of the citation issued under section 2686, the objections to the executor, or any of them, mentioned in section 2685, “are established to the surrogate’s satisfaction, he must make a decree revoking the letters issued to the person complained of. But the surrogate may, in his discretion, * * * allow letters to remain unrevoked * * * [subdivision 3] where the case is within subdivision 5 of that section,” (2685,)—that is, where the executor is pecuniarily irresponsible,—“if the executor gives within a reasonable time, not exceeding five days, the bond prescribed in article first of this title,”. The surrogate appears to have no discretion as to time in which to file a bond in the first instance, if he finds the objection sustained.

The direction of the surrogate of the 10th of May, 1892, was a decree, section 2687, supra,) and this decree was the deliberate and formally expressed judgment of a court having entire jurisdiction both of the person and subject-matter involved. The decree adjudged (1) that the circumstances of the executor did not afford adequate security to the creditors for the due administration of the estate; and, (2) that the value of the property belonging to the estate at the time of testator’s death was $16,000. I am satisfied that /this decree must remain, unless appealed from, or unless the case can be brought within section 2481, subd. 6, of the Code, which provides that this court may open, vacate, or modify its decree or order and grant a new hearing for “fraud, newly-discovered evidence, clerical error, or other sufficient cause,” but with the qualification that “the powers conferred by this subdivision must be exercised only in like cases, and in the same manner, as a court of record and of general jurisdiction exercises the same powers.” This application must rest upon the ground of “newly-discovered evidence.” The ground “other sufficient cause” will not avail to support an application for the introduction of evidence under this section; where its only claim for consideration, in the nature of things, is that it is newly discovered. Row, what

Two other questions involving the merits were discussed upon the motion, which, in the view I have taken, are not necessarily involved in the decision of this motion, yet, as the result of my examination of these questions tends to support the conclusion I have reached upon the more technical ground, it may not be improper to discuss them briefly.

Eirst. As to the question of requiring a bond covering property alleged to be fraudulently conveyed. I am satisfied that while the decision in Peck v. Peck, 3 Dem. Sur. 548, holding “that the surrogate’s court, in fixing the bond of the executor, should not take into consideration any property of the title to which the testator or intestate had divested himself during his life

Second. Upon the remaining question, whether the said real estate belonged to testator at his decease, it would seem, under the authorities, (aside from all considerations pointing to a fraudulent conveyance,) that the proof offered comes far short of showing a, transfer of the legal title from the testator before his death. The deeds in question are not recorded. ' A deed, to convey title, must not only be duly executed, but must be delivered. The fact that the deed from the father, the testator, to the son, is in the possession of the son, who is his executor, does not furnish the necessary proof that it was delivered to the son as grantee during the lifetime of his father, because, if not delivered, he, as executor, would be likely to come into possession of it. In fine, therefore, the absence of any proof of prior negotiations upon the subject of transfer, and the absence of any fact to support the presumption of delivery beyond the bare possession of the deed -by the executor after death of testator, with the added fact that M. L. Eilley, Sr., was at the time of his decease in possession of the property, would seem to require something further to establish that said instrument was delivered by the grantor with intent to convey title prior to his death. Knolls v. Barnhart, 71 N. Y. 474 ; Gifford v. Corrigan, 105 N. Y. 223 , 226, 11 N. E. Rep. 498 .

But, as I have before stated, a decision of the two questions last above discussed are not necessarily involved in the decision of this motion, since I am compelled to hold, under the authorities, that the presentation of the deeds upon this application cannot in any just sense be termed “newly-discovered evidence, ” so that no ground appears which will warrant the opening or modification of the decree. Motion to vacate or modify the decree of May 10, 1892, denied, with $10 costs of motion, and, upon filing proof that the executor failed to file his bond as required by said decree, a' decree1 may be entered vacating the letters testamentary heretofore issued to said executor.