In re the Judicial Settlement of the Accounts of Reeves — 37 N.Y. St. Rep. 959

Majority

p. 959

In the Matter of the Judicial Settlement of the accounts of Robert C. Reeves, Ex’r.

(Supreme Court, General Term, First Department,

Filed April 17, 1891.)

Headnote

Executors and administrators—Accounting.

The mere fact that a decree made upon a prior accounting has been reversed on appeal, the judgment on which had not been entered, is no answer to an application for a final accounting based upon a petition showing that the petitioner is a legatee and that there is a sum of money in the executor’s hands which should be distributed.

Appeal from an order made by the surrogate of the county of Mew York, directing the executor of the estate of Abraham Denike to file an account of his proceedings on or before the 9th of December, 1890.

Henry W. Bates, for app’lt; Henry J. Morris, for resp’t.

It was made to appear by the petition presented to the surrogate that more than eighteen months had elapsed since the decease of the testator, and since a preceding account had been filed by the executor, and that the applicant, Charles W. Denikep was interested as a legatee in the estate, and that there was still in the hands of the executor more than the sum of a thousand dollars which should be distributed between himself and his brothers and sister. This petition containing these statements was not denied by the executor. And the facts presented by it were sufficient, within sub. 4 of § 2723 of the Code of Civil Procedure, to require the executor to finally present and settle his accounts. And the answer presented by him contained no statement of facts whatever in any manner relieving him from this obligation under the statute. What he stated therein was that there was still unsettled in the general term of this court an appeal from the decree entered in the last accounting, and that the decision had reversed the decree of the surrogate, and judgment had not been entered thereon, and that there was no basis for an accounting until the judgment on the appeal should be entered. These statements presented „no legal ground of objection against the action taken by the surrogate. For even if a preceding decree had been reversed, it was still a matter of importance to the persons interested in the estate that as to this remaining sum of money in the hands of the executor he should present his account. When it is presented it may be, and probably will be, that the entire account will become the subject of investigation and settlement But without this additional account the proceeding before the surrogate would not be in a condition in which the estate could be finally examined and closed up. As the case was made to appear by the petition and not controverted by the answer, otherwise than by this reference to the proceedings in the general term, the peti

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tioner was entitled to the order which the surrogate made, and it should be affirmed, with ten dollars costs and the disbursements.

Yah Brott, P. J., concurs.