In re the Accounting of Underhill — 25 N.Y. St. Rep. 684

Majority

p. 684

In the Matter of the Accounting of Philip R. Underhill, Executor, etc., of Elizabeth R. Underhill, Deceased.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Executors and administrators—Accounting — Unauthorized decree—When vacated.

On accounting by an executor a decree was made adjudging that a devisee had been overpaid and that she repay the sum to the executor. Subsequently the devisee died, and, upon application by her executor, the surrogate vacated the decree as to her. Held, that the order was properly made.

2. Same—Surrogate—Power to vacate decrees.

A surrogate has power to vacate an unauthorized decree.

Appeal from an order of the surrogate’s court, Westchester county, vacating part of a decree of that court.

p. 685

Townsend, Dyett & Einstein, for app’lt; Alexander Tliain, for resp’t.

Philip ft. Underhill, the executor of Elizabeth R. Underhill accounted before the surrogate of Westchester county. By the terms of the will of the deceased Elizabeth M. Guyon was entitled to a life estate in a share of the net income. The surrogate in the decree then made, adjudged that Mrs. G-uyon had been over paid $3,958.85, and further adjudged that she repay the said sum to the executor. The decree was made in November, 1882. Mrs. G-uyon died in December, 1883, and her executor applied to vacate that part of the decree which adjudged Mrs. G-uyon to repay the over-payment to the executor. The surrogate granted the motion, and vacated the decree so far as it effected this overpayment to Mrs. Guyon. The order was rightly made. A surrogate has power to vacate orders which his court had no power to make. Vredenburgh v. Calf (9 Paige, 128). The power to correct j udgments in proper cases is inherent to courts of justice. Ladd v. Stevenson ( 112 N. Y., 325 ; 20 N. Y. State Rep., 746).

The surrogate had no power upon the accounting beyond settling the accounts. The court established the assets and payments for and on the estate. An unauthorized payment had no place in the account. That was a private matter between the executor and the person to whom the payment had been made, and enforceable as such by action. The surrogate could issue no execution to enforce the expunged parts of this decree. The surrogate had no power to adjudge anything but the fact, whether Mrs. Guyon had been paid her life estate interest up to the time of the accounting, and when this was done, the distribution could proceed.

The order should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting, i