Majority
p. 200(27 Misc. Rep. 76.) In re GEARNS’ ESTATE. (Surrogate’s Court, New York County.. April, 1899.)
Headnote
1. Accounting—Reverence—Amendment.In an accounting the referee may allow any amendment which does not include a transaction subsequent to the return day of the citation.
2. Executors—Decree—Vacation.
In an application against an executor to vacate decrees of accounting, applicant cannot object that the decrees do not provide for distribution. This must be done in an independent proceeding, to which all,those interested in the fund are parties.
8. Same—Guardian—Credits.
Where an executor had not turned over moneys to himself as guardian, expenditures for the support of the testator’s children were properly credited in his account as executor.
Applications to revoke letters, open decree, etc.
Denied.
Lenehan & Dowley, for petitioners.
Titus & Dowling, for respondents.
This matter was argued before Surrogate Arnold, and has since been submitted to me. The applications to. vacate the decrees herein are based mainly on five grounds: (1) That the petitioner was never served with the citations; (2) that the account
p. 201
ings are fraudulent, and reveal gross errors; (3) that the referee had no power to permit an amended account to be made; (4) that the decrees do not provide for distribution; and (5) that the executor could not account as guardian while accounting as executor. A careful study of the affidavits submitted makes the conclusions inevitable that the petitioner was personally served with the citations. Furthermore, in going over the various accountings filed, I fail to find evidence sufficient to substantiate the allegations of fraud or error made by the petitioner, or to justify the vacating of the decrees herein made upon two accountings, both of which were contested, in part successfully, by the special guardian appointed by the court. So far as the third objection is concerned, the power of a referee to grant the same amendments that the surrogate himself may allow cannot be questioned. In an accounting the referee may allow any amendment which does not include a transaction subsequent to the return day of the citation. In re Odell’s Estate (Sur.) 4 N. Y. Supp. 463 ; In re Munzer’s Estate (Sur.) 25 N. Y. Supp. 818 . If the petitioner desires to raise the question of distribution, let him take appropriate independent proceedings, bringing in all of the parties interested in the fund. The fifth objection urged by the petitioner is also without merit. The moneys paid out by the executor for the maintenance of the children of the testator were disbursed by him in his capacity of executor only. There has never been any turning over of moneys to himself as guardian. Hence these sums were properly credited in his account. Browne v. Bedford, 4 Dem. Sur. 304. The applications must be denied.
Applications denied.
Cases cited
- Browne v. Bedford 4 Dem. Sur. 304 p. 201