In re Prout — 22 N.Y. St. Rep. 490

Majority

p. 490

In the Matter of William F. Prout, Deceased.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

-Executors and administrators—Accounting ob—Code Crv. Pro., § 2514, sued. 11—Who may present petition bob an accounting.

William F. Prout died intestate, leaving personal property, and as his next of kin, nieces and nephews, of whom Robert T. Prout, the petitioner’s father, was one. Subsequent to the death of William F., Robert died, leaving a will appointing an executor, and under which the petitioner was residuary legatee. It is claimed that the executor represents the sole claimant as party in interest in the estate of William F. Prout as the personal representative of Robert T. Prout: Held, that the petitioner, as legatee, is such a person interested in the estate of William F. Prout, within the provisions of section 2514, subdivision 11, Code Civil Procedure, as to entitle him to present a petition for an account.

Appeal from order of the surrogate directing that the administrators of the estate of William F. Prout, deceased, render an account.

G. H. Crawford, for app’lt; E. D. Hawkins, for resp’t.

—This is an appeal from an order made by the surrogate upon the petition- of Moses P. Prout, directing that the administrators of William F. Prout, deceased, render and settle an account of their proceedings as such administrators.

The objection taken is that the petitioner is not a person interested in the estate, so as to authorize him to present his petition for the purposes above stated. The deceased,' William F. Prout, died intestate, leaving personal property, and as his next of kin, six nieces and four nephews, of

p. 491

whom Robert T. Prout, the father of the petitioner, was one. Subsequent to the death of William. F. Prout, Robert T. Prout, his nephew, died, leaving a will, whereby the brother of the petitioner, William, was appointed sole executor, and under which the petitioner was a residuary legatee.

This will was admitted to probate bj- the surrogate of Kings county, and letters testamentary issued thereon to the executor therein named. It is claimed that such executor represents the sole claimant or party in interest in the estate of William P. Prout, deceased, as the personal representative of his nephew, Robert T. Prout, deceased, the father of the petitioner.

The provisions of the Code are that a petition of this character may be presented by “a creditor or a person interested in the estate or fund,” and that the interpretation of the term is somewhat obscured by the definition given to it by subdivision 11 of section 2514, where such person is defined as one who is entitled either absolutely or contingently to share in the estate or the proceeds thereof, or in the fund as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor. Although the petitioner is not strictly legally entitled to receive directly from the administration any portion of the estate which they are called upon to administer, yet that he is a person interested in the estate within the provisions of the section, seems to be distinctly held in the case of Fisher v. Banta ( 66 N. Y., 468 ), where the court holds that a legatee bearing the same relation to the original estate as the petitioner does to the estate of his great uncle, had an interest in a similar proceeding before the surrogate.

It is true that there may have been other reasons for the court holding as they did in that case that the accounting should not be considered as final as the interest of the representatives of the two estates were in nowise hostile and the interests of the legatees in the last estate were not represented by any independent party, the proceeding being instituted by a person or representative of one estate against himself as representative of another.

Were it not for this expression of opinion upon the part of the court of appeals we should be inclined to hold that the legatee under the will of the nephew had no interest either absolute or contingent in any portion of the estate of the great uncle deceased, but that- all the claimants of the petitioner’s father’s estate against the estate of the intestate were represented by the executor In view, however, of the expression by the court of appeals upon this question, we think that the order should be affirmed, with ten dollars costs and disbursements.

Bartlett, J., concurs.