In re the Estate of Dwight — 29 N.Y. St. Rep. 210

Majority

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In the Matter of the Estate of Amos T. Dwight, Deceased.

(Surrogate’s Court, New York County,

Filed January 23, 1890.)

Headnote

Executors and administrators—Intermediate account.

An intermediate account when filed should he in such shape that it may he settled in a proceeding to he instituted under § 2729, Code Civ. Pro.

■ Accounting by executors.

This is a proceeding commenced upon the surrogate’s motion.

In response thereto, what professes to be an intermediate account •of the proceedings of the executors has been filed. The estate is a large one, the property purporting to be accounted for amounting to nearly $600,000.

The account filed sets forth in detail the cash and personal property which came into the hands of the executors, and purports to .account for the disposition made of the money, together with the personal securities.

Ho vouchers are filed for the payments alleged to have been made, nor are receipts or releases filed from the legatees or from .annuitants.

Executors and administrators, and more particularly counsel having in charge the filing of answers or accounts in response to proceedings of this character, seem to be under a grave misapprehension as to the scope of the proceeding and the character of the account to be rendered. I have, therefore, considered it advisable to take advantage of this opportunity of reminding such officers of the law upon the subject in order that I may not be required in each individual case arising in the future to criticise the accounts filed. '

The account required by the order of the surrogate’is an intermediate account; when filed it should be in such shape that it may be settled in a proceeding to be instituted under § 2729 of the 'Code of Civil Procedure. See 6 Dem., 506 .

The account should state if an inventory has been filed; and if none has been filed, the account itself should furnish the information usually thus supplied. It should likewise, state whether or not advertisements for claims have been published, what claims have been presented, what allowed, and what rejected ; and the time and manner in which they were rejected or disputed, and the reason therefor. Also, what claims have-been presented and allowed since the expiration of* the publication of the advertisement for claims. The accountant should then proceed to credit himself with funeral charges and expenses of administration, with moneys paid to creditors, naming them, and payments to legatees •or next of kin. He should state the age of legatees and next of kin, if any are minors, and whether they have guardians, and if so, their names and places of residence, and how appointed If there is any other fact which has occurred as part of his proceedings, which may affect the estate or the rights of any distributee or his own rights, he is bound to state it. He must not only state in what character his payments were made, as

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whether to creditors, legatees or next of kin or for expenses for funeral charges or of administration distinctly, but he must produce vouchers supporting each payment; or in cases of claims under twenty dollars where no voucher is produced, he must make and present, in lieu of voucher, his own oath positively to the fact of payment, when made, and to whom. Unless the order of the surrogate, requiring an executor or administrator to render an account of liis proceedings, is obeyed in this manner, as plainly indicated by the statute, he will not have made the proper response to the order.

“ The mandate is judicial and peremptory as to him to render an account of his proceedings, not to the extent he shall deem proper, nor a part of his proceedings, but his proceedings as executor from the day he qualified until the day he answers the order.” lie Jones, 1 Redi, 268.

Of course, the order of the surrogate may be answered by the representative of the decedent filing with the court the releases, duly acknowledged, of all the parties interested in the distribution of the fund, either as legatees or next of kin. Where such legatees or distributees are dead, similar releases should be obtained from tlieir personal representatives.

Unless the account filed is amended within ten days, so as to correspond with the foregoing directions, a reference will be ordered.