In re Monteith's Estate — 58 N.Y.S. 379

Majority

p. 379

(27 Misc. Rep. 103.)

In re MONTEITH’S ESTATE.

(Surrogate’s Court, New York County.

April, 1899.)

Headnote

Executors and Administrators—Reopening Decree—Settling Account-Appeal.

An error of the surrogate in allowing excessive commissions upon the settlement of an administrator’s account is one of law, and the decree cannot he opened under Code Civ. Proc. § 2481, and corrected by reducing the commissions. The remedy is by appeal.

Application to amend decree.

Denied.

Ward, Hayden & Satterlee, for petitioner.

Howard Payson Wilds, for executors.

Motion to permit J. W. Monteith to file additional objections to executor’s second account. This matter was submitted to Mr. Surrogate Arnold, but reargued and submitted to me. The motion made herein for leave to file additional objections to the account of the executor, raising an issue as to the validity of the payments out of income assessments imposed on the real estate, is granted. A reference will be ordered to determine the objections already filed, and those which may be filed in pursuance of the foregoing decision.

Estate of James Monteith.

This matter was submitted to Surrogate Arnold, but has since been reargued before and submitted.to me. The papers show that on December 29, 1891, a decree was entered in this court judicially settling the accounts of the four executors of the will of James Monteith, deceased, which directed that three full commissions, amounting to $3,159.21, be retained by the accounting parties. James W. Monteith, a son of the testator, and legatee, was a party to the proceedings, and, together with all other parties interested, and without appearing in person, waived the issuance and service of a citation, and consented to the entry of a decree settling the accounts filed. An effort is now made by him to open and correct said decree by reducing the commissions allowed to $728.08, on the theory that certain specified personal property, which was included in the personal estate of the decedent by the surrogate in determining whether such estate amounted to $100,000 over the debts, was improperly so included, and that the commissions which were allowed thereon were unlawfully so allowed. I do not know upon what theory the decree can be disturbed. Section 2481 of the Code permits the surrogate to open and vacate decrees for fraud, newly-discovered evidence, clerical error, or other sufficient cause; and “other sufficient cause” has been interpreted as meaning causes of like nature with the others specifically named. In re Tilden’s Ex’rs, 98 N. Y. 434 ; In re Hawley, 100 N. Y. 206 , 3 N.

p. 380

petitioner claims that the surrogate made a clerical error in allowing the commissions in question, but, in my opinion, if he erred, the error was one of law,, and not a clerical mistake. His decision in the premises was a judicial determination, and, whether right or wrong in allowing the commissions objected to, could only be reviewed upon appeal. This court has no power to open a decree for an error of law. In re Singer’s Estate, 3 Dem. Sur. 571, as finally affirmed 100 N. Y. 206 , 3 N. E. 68 ; In re Tilden’s Estate, 5 Dem. Sur. 230-242; s. c. 98 N. Y. 434 .

Application denied.

Cases cited

In re the Several Accountings of the Executors of Tilden 98 N. Y. 434 N.Y. 1885-03-10 p. 379, p. 380
In re the Accountings of Hawley 100 N. Y. 206 N.Y. 1885-10-20 p. 379, p. 380
In re Havermeyer's Estate 8 App. Div. 312 N.Y. App. Div. 1896-07-31 p. 379
Singer v. Hawley 3 Dem. Sur. 571 N.Y. Sur. Ct. p. 380
In re Tilden 5 Dem. Sur. 230 N.Y. Sur. Ct. p. 380