In re the Estate of Wagner — 22 N.Y. St. Rep. 208

Majority

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In the Matter of the Estate of Webster Wagner, Dec’d.

(Supreme Court, General Term, Third Department,

Filed March 16, 1889.)

Headnote

1. Wills—Yoluntaby settlement—Eeeeot oe belease.

A testator by Ms will gave Ms personal property to his widow for life,, with _ remainder to Norman L., his son. He gave each of his children: certain specific real estate on condition, in each instance, that if the devisee should die without lawful issue surviving, the property should go to-the other children. He then gave the residue of his estate to his widow and his children in equal shares. The widow and all five children executed an instrument setting forth the execution of the will, the residuary clause, the probate, acknowledged severally the receipt of their respective-shares, and closed with a release and discharge of the executors of all demands. Subsequently Norman L. died and letters testamentary were-issued to his wife, and she filed a petition alleging that one Taylor was. surviving executor, that he had filed no inventory of the personal estate, and asking that he be compelled to file one and make an accounting:. Field, that the duty of the executrix and executors of the testator was performed when they delivered the property specifically bequeathed to the-, widow, with remainder to Norman L., to the widow, and that the paper-signed by the widow and Norman L. is proof until contradicted; that the specific legacy was properly delivered; that the remedy of the petitioner is. against the executors of the widow.

2 Same—Inventoby—Accounting—Right to demand aeteb settlement-HAD.

In regard to the right to have an inventory filed and an accounting had. of the rest of the property: M Id, that where there has been a voluntary-settlement and release by all the parties interested, such settlement should, have the same conclusive effect as a similar one in any other matter; and that a representative of one of the parties thereto who seeks to have the-settlement set aside on the ground of fraud or otherwise must first have-recourse to her legal remedy by appropriate action before the matter can be reopened.

Appeal from two orders of the surrogate of Montgomery^ county directing James D. Taylor, surviving executor of

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the estate of Webster Wagner, deceased, to make and fil& an inventory and render an account.

The deceased died in January, 1882, leaving surviving, his widow, Susan Wagner, and his five children, Norman. L. Wagner, Emma C. Taylor, Anna P. Van Vlack, Olara. E. Stetson and Annetta 0. Wagner.

By his will he gave his family residence with the personal property attached thereto to his widow for life, with re.mainder to Norman L.

He gave to each of his children certain specific real estate, with the condition in each instance that if the devisee should die without lawful issue surviving, the property should go to the other children.

He then gave the residue of real and personal equally to his widow and his five children, and made his widow, his son, Norman L., and his son-in-law, James D. Taylor, executrix and executors.

Letters testamentary were duly issued to them in January, 1882.

On the 7th of March, 1885, the widow and all the five-children executed under hand and seal an instrument of that date, setting forth the fact of the execution of the will, and setting forth fully the aforesaid residuary clause, and the probate, and then aclmwledging severally the receipt, from, said executrix and executors of the sum of $75,000, each “being the one-sixth part of all real estate, all notes, bonds,” etc., “and all other personal effects not specifically devised under said last will and testament, so given and. bequeathed to us as aforesaid.” The instrument closed with a release and discharge of the executrix and executors of and from all legacies, dues and demand whatsoever under or by virtue of said will.

On the 4th of November, 1886, Norman L. Wagner died intestate, leaving children surviving. Letters of administration on his estate were issued November 29, 1886, to Josephine L. Wagner.

Josephine L. Wagner,, administratrix, on the 26th day of October, 1887, upon a petition setting forth part of the-will of Webster Wagner, the appointment of executrix and executors, and the fact that James D. Taylor was sole surviving executor, and her own appointment and also the fact, that no inventory had been filed, applied to compel said surviving executor to file such inventory.

The surviving executor answered, setting up that the-personal estate had been fully accounted for: that the petitioner had no interest therein; that a full statement of all matters and things pertaining to the personal estate of said dededent was made February 27, 1885, by the executrix:

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■and executors to the widow and children, and a paper given thereupon by the widow and children under hand and seal, being that above stated.

On the hearing before the surrogate, the petitioner proved "the will and probate, also the will of Susan Wagner and probate, and the petitioner’s appointment as administratrix «of Norman L., and as guardian of his children; and rested. The executor proved the instrument above described. There was no other evidence. The surrogate ordered an inventory to be filed.

A similar application was made of the same petitioner to •compel the said surviving executor to make an accounting. The same evidence was given, and the surrogate ordered an -accounting.

The surviving executor appeals from both orders.

Esek Cowen, for app’lt; Hiram Houston, for resp’t.

—As to the personal property specifically "bequeathed to the widow, Susan Wagner, with remainder to Norman L., it is plain that the executrix and executors, had nothing to do but to deliver it to the life-tenant. The Temainder-man, Norman L. was entitled to have from her -an inventory. Perhaps in a proper case, he might have ¡security from her. But the duty of the executrix and exe■cutors of Webster Wagner, was performed when they delivered the property to the widow. The paper signed by the widow and Norman L. is proof, until contradicted, that "that specific legacy was properly delivered. If Norman L. «or his widow, the petitioner, seeks to obtain that property, they must proceed against the executors of Susan Wagner’s will.

As to the rest of the property, the question briefly stated is this: when the executors of a will have fully accounted and settled with all the legatees, and have paid them their respective shares, and have been discharged by such legatees •out of court, can the administratrix of one of those legatees, without proof of any fraud, compel the filing of an inventory. There certainly seems to be no reason, upon principle, why the parties in interest should not, without any proceeding in court, examine an executor’s inventory and account, and settle the same, and give him a full discharge. The provisions for filing an inventory, and for having accounts, are for the benefit of the persons interested, not for the satisfaction of the public or of the assessors. And if such persons prefer to settle their affairs privately, such settlement should have the same conclusive ■effect as a similar settlement in any other matter. That view is especially strong in the present case; because the petitioner is the representative of one of the executors, who

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(it is to be presumed), had, and knew of, the inventory of property, and the accounts of the executors, and who distributed to himself and the other legatees, his and their respective shares, according to the instrument of March Y, 1885.

There is no doubt that, in some court, relief can be had;, by the petitioner against that instrument if it was obtained: by fraud. But the question here is, whether, notwithstanding the settlement, of which, at present, that instrument is-evidence, she has a right to compel the filing of an inventory.

The petitioner cites several cases which we must' examine. Thompson v. Thompson, 1 Brad., 24 . In this case-it turned out on examination that the inventory had been filed. Therefore there could be no decision as to the right, to compel its filing.

Burwell v. Shaw ( 2 Brad., 322 ) was not a case in regard to an inventory, but in regard to granting letters. Creamer v. Waller ( 2 Dem., 351 ) was the case of a creditor whose-debt was disputed, but who showed facts in support thereof. In Bonfanti v. Deguerre ( 3 Brad., 429 ) the executor, in reply to the petitioner, alleged an assignment of the petitioner’s claim. It was held that this was not a sufficient-answer. Matter of Dunkel (10 N. Y. State Reporter, 213): held only that an executor could have his commissions-from a co-executor, notwithstanding his having signed a, receipt for his distributive share. In re Brown (3 Civ. Pro. Rep., 39) has nothing to do with the filing of an inventory. Matter of Read, 41 Hun, 95 . This was an application by a distributee to compel an accounting. It was-opposed by the administrator on the ground of a general release of all claims and demands, and of all liability as administrator. The court held that the surrogate could determine the validity of the release, and that an accounting, should be ordered. The decision that the surrogate could try the validity of the release is there stated to rest on Harris v. Ely ( 25 N. Y., 138 ).

In Bevan v. Cooper ( 72 N. Y., 317 ) the court say that the-remark in Harris v. Ely was obiter, and it is disapproved.. Indeed it may be considered as decided by that case and by Stilwell v. Carpenter ( 59 N. Y., 414 ), and Tucker v. Tucker (4 Keyes, 136), that the surrogate could not pass upon the validity of the release.

The case of Van Sinderen v. Lawrence (20 N. Y. State Rep., 72) was one in regard to a testamentary trustee, and’ is said in the opinion to be analogous to a similar case in regard to an executor. The plaintiff, a testamentary trustee, applied_ to the surrogate for an accounting. The defendant claimed to be made a party, and was so made.

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The plaintiff objected to defendant’s being heard, on the grounds against release. The surrogate refused to pass on the validity of the release. This action was commenced to restrain the proceedings before the surrogate until decision by the supreme court on the validity of the release. 'The action was sustained. Similar to this is Pittigrew v. Foshay ( 12 Hun, 486 ). These cases imply that the proceedings before the surrogate should not go forward until ■a court of equity had decided that the release is invalid.

_ The case of Kenny v. Jackson (1 Hagg., 105) is repeatedly •cited. That was a case in the prerogative court of Canterbury. In the opinion it is remarked that it was claimed that Kenny, the petitioner, was a minor when he released, and that he certainly was a very young man.

The court further say that they cannot notice such an instrument, but that if the executor is vexatiously cited he may have relief in another court. It would seem then that in that case the youth of the petitioner was considered, and also that it was thought that some other court could relieve the executor if the proceedings were vexatious. We suppose that if this executor has been cited vexatiously the .surrogate should have relieved him. And certainly no question exists in this case as to the legatees being of full and ripe age.

It is worth noting here that the surrogate in his opinion says that after an accounting is had, should the petitioner proceed to ask a decree against the executor in respect to any portion ■of the funds of the estate, it may then be necessary to determine the validity of the release and its effect. Now as the .filing of an inventory and the having an accounting are of no use unless the petitioner can have a decree for some funds, and as the surrogate cannot try the validity of the release, it would seem that this proceeding must be of no avail. _ That is, suppose an inventory be filed and an accounting had and thereupon it should appear that the value ■of the estate on the 7th of March, 1885, was more than six times the amount received by Norman L. Wagner; what then is to be done? An action must be brought to set aside the release on the ground of fraud. If that action should be unsuccessful then the filing of an inventory and the .accounting would have been useless.

But it is strongly urged that the inventory and the accounting should be had in order to furnish facilities for the plaintiff to prove that the settlement of March, 1885, was fraudulent. But all this can substantially be obtained in an .action to set aside the settlement. The plaintiff can in such an action examine the defendant and compel the exhibition •of all the inventory and accounts which may be needed. In such an action the whole matter can be investigated and satisfactorily disposed of.

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The petitioner further relies on section 2514 of the Code of Civil Procedure, subdivision 2. The note informs us that this is intended to settle a question. It is quite as likely to unsettle. If it means that any person who will verify a petition that he is interested, however false the allegation may be, can compel inventories and accountings in an estate, in which he has no shadow of interest, it has introduced a most dangerous principle. Such should not be its construction, JSTo person should without reasonable evidence of interest, interfere in the settlement of an estate. And where there has been a voluntary settlement and release by all the parties interested, the representative of one •of those parties should have such settlement and release set aside in a legal manner before the matter should be reopened. The court should not discourage parties from voluntarily making a full settlement, in the case of estates of deceased persons any more than in any other matters of trust.

The order of the surrogate should be reversed, with costs.

The same, also, as to the order for an accounting.

Ingalls, J., concurs.