In re the Judicial Settlement of the Accounts of Chamberlain

Majority

p. 841

In the Matter of the Judicial Settlement of the Accounts of Margaret Chamberlain, Ex’rx.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1892.)

Headnote

Executors and administrators — Accounting—Preliminary examination.

The executrix was examined pursuant to § 2735 of the Code, and upon the hearing certain portions of such examination were introduced in evidence by the contestant. The surrogate ruled that any portion of such examination as would tend to modify, contradict or explain the portions already in evidence might be given in evidence by the executrix. Held, that" the decree of the surrogate would not be reversed for inadvertent omissions to apply practically such ruling to certain offers, where the evidence thus excluded would not have changed the conclusion upon the facts reached by him.

Appeal by Margaret S. Chamberlain, Executrix, etc., of Julius A. Chamberlain, deceased, from portions of the decree of the surrogate of Cayuga county, dated July 24, 1891, judicially settling her accounts as executrix of the last will of Iter husband, Julius A. Chamberlain. Also, an appeal by Julius W. Chamberlain, a contestant of such account, from certain portions thereof.

p. 842

Coburn & Hunter, for Margaret S. Chamberlain, executrix, app’lt and resp’t; Fred. A. Storke, for Julius W. Chamberlain, app’lt and resp’t.

The executrix presented- a claim against the estate of the late Julius A. Chamberlain, in the sum of $2,065.56. Of this sum the learned surrogate has allowed all except $796, which consisted of a book account, containing many small items. We have examined the testimony adduced before the surrogate in respect to the claim in its several parts, and are of the opinion that the conclusion reached by the surrogate was well sustained by the preponderance of the evidence.

A question, however, is raised by the learned counsel for the executrix, that the surrogate erred in excluding certain evidence which should lead to a reversal and rehearing of the case. Before issue was joined upon the claim personally made by the executrix, her preliminary examination was had under § 2735 of the Code of Civil Procedure. This section obviously was designed to enable parties to an accounting to subject the executor to a rigid personal examination in order to ascertain the condition of the accounts and the application made of trust property. Afterwards, and after objections to the account had been filed, the contestant, Julius W. Chamberlain, through his counsel, introduced in evidence before the surrogate upon that accounting portions of the preliminary examination theretofore taken. Thereupon, the counsel for the executrix offered other portions of such preliminary examination in evidence, and sought to examine the executrix anew in some respects. The ground of the error claimed is, that the surrogate refused to admit certain portions of such preliminary examination which tended to explain other parts thereof already put in evidence by the contestant, and to exonerate, to some extent, the executrix from any blame in the management of the estate. On inspection of the record, however, it is found by us that the surrogate ruled consistently, that any portion of such preliminary examination as would tend to modify, contradict or explain the portions already put in evidence by the contestant might be given by her, and to this ruling he adhered consistently throughout the whole trial, which was somewhat protracted. If there have been any inadvertent omissions to apply practically such ruling to the many offers contained in the case, they are not of sufficient moment to lead to a reversal of the decree. On the contrary, under the obligation imposed by, or which may be assumed by us under § 2586 of the Code of Civil Procedure, we have examined these parts of the preliminary testimony so thrown out by the surrogate, and, from such examination, we are of the opinion that there was nothing which was excluded therefrom by the surrogate which would have changed in any respect the conelusion upon the facts reached by him. We think, therefore, that the decree should be affirmed.

Decree of the "surrogate of Cayuga county appealed from affirmed, without costs of this appeal to either party.

Dwight, P. J., and Lewis, J., concur. ■