In re the Will of DeRussy — 37 N.Y. St. Rep. 646

Majority

p. 646

In the Matter of the Will of Emily L. DeRussy, Deceased.

(Supreme Court, General Term, First Department,

Filed April 17, 1891)

Headnote

1. Surrogate’s court—A referee cannot be appointed by the surrogate UPON HIS OWN MOTION TO EXAMINE AN ACCOUNT FILED UPON AN INTERMEDIATE ACCOUNTING.

Where an executor, pursuant to an order of a surrogate, made under sub. 4, § 2723, Code Civil Procedure, flies an intermediate account, which is not contested, the surrogate has no power to appoint, of his own motion, a referee to examine such account.

2. Same—Object of an intermediate account.

The object of an intermediate account is to show the condition of the estate, and the case is not within § 2546, Code Civil Procedure, providing for a reference to examine an account rendered.

Appeal from an order of the surrogate of the county of New York, denying a motion of the executor to vacate an order appointing a referee to examine an intermediate account which the executor had filed under an order directing that to be done.

Edward C. James, for app’lt; Abram Kling, for resp’t.

The account affected by the order was filed by the executor pursuant to an order of the surrogate, made under subd. 4 of § 2723 of the Code of Civil Procedure. That empowered the surrogate by an order to require an intermediate account to be rendered when eighteen months have elapsed since the letters were issued, and no special proceedings were pending for a judicial settlement of the accounts of the executor. And the facts in this case brought it within this provision of the Code.

The executor in compliance with the order of the surrogate filed his account in detail, commencing with the 3rd of May, 1881, and ending on the last day of December, 1889. It was

p. 647

verified by the oath of the executor, and stated the receipts and expenditures of the executor, showing a balance in his hands amounting to the sum of $954.54, no objection to its correctness was made by anyone, and no person was cited or ordered to appear, either to examine or secure its settlement But the surrogate at his own instance directed its examination by a referee. And the appeal depends upon the question whether he was vested with that authority.

It was no part of the proceeding, as that has been authorized, to investigate or settle the account, and no parties were before the surrogate to be affected in any manner by its examination. And if it should be made, it would be attended with no effect whatever, and would conclude no one, but it would be a wholly useless proceeding, which the Code has not provided for. The object of the account is to disclose “ the acts of the person accounting, and the condition of the estate, or fund in his hands, and not made the subject of a judicial settlement.” Subd. 9 of § 2514, Code of Civ. Pro. The last clause of the subdivision discloses the fact that it is no part of the accounting, to obtain a settlement of the account For it is only where a proceeding for the settlement is not pending that the intermediate account may be ordered. And the condition of the estate is expected to appear from the account itself. That is its object, and when the account is placed on file, that object has been accomplished. And it can be made no more effectual by an examination and report upon the account by a referee. The executor is bound to file a complete account, and when that has been done all the information has been obtained which the law has intended by this proceeding to secure. It is to create a record of the condition of the estate, and when that has been made the power conferred has been executed.

The case is not within § 2546 of the Code, which expressly provides for a reference to examine an account rendered. For that power has been delegated to be used in a special proceeding. And that proceeding is to be commenced in the surrogate’s court by a citation, when not otherwise specially prescribed by law. There is no special provision designating the order for the intermediate account to be such a special proceeding. And as no citation could be issued to obtain the account, but it was to be secured by an order alone, it follows that the order for, and the rendition of the account, cannot be held to be a special proceeding within its definition as that has been given by this section.

The account may be consolidated with an account filed on the petition of a creditor, next of kin, or other party in interest. And when not so consolidated may be contested .by any party in interest, Code, § 2730. But no provision exists for a contest on the part of the surrogate. The case differs entirely from Buchan v. Rintoul, 70 N. Y., 1 , which included an account rendered on the application of a party interested in obtaining and investigating it. And the act under which the examination, through the intervention of a reference, then took place, has since been repealed.

It is a significant omission that no authority has been provided

p. 648

for the examination of an intermediate account of an executor or administrator by means of a reference, while that has been specially provided for in the annual accounts of general guardians, Code, § 2844, and which, by § 2341, has been made applicable to the accounts of committees of lunatics and other persons of unsound mind. The express creation of the power for these other cases indicates the existence of the intention that, without specifically creating it, the power would not exist. And that it does not exist over an intermediate account obtained under an order, as this account was, is the clear effect of the provisions relating to that class of accounts. The parties in interest may contest or investigate the account. But until they shall be brought in, or otherwise appear, the power vested in the surrogate will be exhausted by obtaining and filing a proper account. The object of the law will then be attained, and that is to show by the account the condition of the estate.

The order should be reversed, and the order directing the reference vacated.

Lawrence, J., concurs; Yan Brunt, P. J., concurs in result.