Estate of Fithian — 5 N.Y. St. Rep. 375

Majority

p. 375

In the estate of Freeman J. Fithian, deceased; two matters.

(Surrogate’s Court of New York County,

Filed November 30, 1886.)

Headnote

1. ACCOUNTING, BY REPRESENTATIVE OP DECEASED EXECUTOR — CODE Civ. Pro., § 2606.

Where an executor died before accounting upon a proceeding taken by a beneficiary under the will of the testator for an order requiring the executrix of the executor to render and settle his account, it was held, that by virtue of Code Civ. Pro., § 2606, the executrix was compelled to account, not only for such assets of the testator as came to her hands, but for the entire administration by the executor.

2. Same — Jurisdiction op surrogate's court to order delivery op TRUST PROPERTY.

Held, also, that by this section the authority of the surrogate to compel the executrix of the deceased executor to deliver over trust property was confined to such as had come to her possession or under her control, and that it contemplated a delivery into court or to a newly appointed representative, but not to a legatee, next of kin, or creditor.

No. 1. Accounting proceeding.

The will of this decedent, who died on August 4th, 1884, named Lemuel B. Clark as its executor. Mr. Clark was granted letters testamentary on October 15th, 1884. He died on June 9th, 1886, having rendered no account of his administration. He left a will of which his widow Mary J. Clark is executrix. She qualified as such on July 7, 1886. On the succeeding day a proceeding was instituted in this court by Mrs. Harriet J. Fithian, widow of the testator and beneficiary under his will, for an order requiring Mrs. Clark, as executrix of her late husband’s estate to render and settle his account as Mr. Fithian’s executor.

On October 14, 1886, the respondent filed an account, the scope and character whereof are indicated by its opening sentence, which is as follows: “ I, Mary J. Clark, executrix of Lemuel B. Clark, deceased, who was himself executor of Freeman J. Fithian, deceased, do hereby account for all money and other property received by me as such executrix belonging to the estate of the said Freeman J. Fithian, deceased.”

p. 376

It is insisted on behalf of the petitioner that by virtue of section 2606 of the Code of Civil Procedure (and it is upon that section that the present proceeding is founded), she is entitled to an accounting from this respondent, not only as regards all money and property of the testator’s estate which have come to the respondent’s hands, but also as regards all such money and property as came at any time to the hands of the respondent’s late husband.

I had occasion in several reported cases which arose before the enactment of Chap. 899 of the Laws of 1884, to consider the extent of the surrogate’s authority to require the executor or administrator of a decedent, A, who had acted in his lifetime as the executor or administrator of a decedent, R, to account for A’s dealing’s with B.’s estate. (Le Count v. Le Count, 1 Dem., 29 : Maze v. Brown, 2 Dem., 217 ; Murray v. Vanderpoel, Ibid, 311: Bunnell v. Ranney, Ibid, 327).

In the eases just cited it was held that such accounting could be insisted upon, only to the extent that the representative of the deceased executor or administrator had come into possession of assets belonging to the estate of such deceased executor’s or administrator’s decedent.

These limitations were removed by the act of 1884 above referred to, and section 26Q6 was so amended as to provide, that “ where an executor or administrator dies, the surrogate’s court has the same jurisdiction to compel the executor or administrator of the decedent ” (that is such of deceased executor or administrator) “ to account which it would have against the decedent ” (such deceased executor or administrator meaning) if his letters had been revoked by a surrogate’s decree.”

Now in the present case if this respondent’s testator were alive he could be required, even though his letters testamentary had been revoked, to account for his entire administration of this estate. And such an account is precisely what may be required of his executrix, i, e an account of her husband’s administration from the day of his appointment until his death. The only important practical change effected by the act of 1884, is one that relates purely to methods of procedure. But for that act the course which any person interested as legatee in the estate of this testator would be obliged to pursue, in bringing about an adjustment of the claims of such estate upon the estate of the testator’s deceased executor Clark, is that which, is pointed out in the cases above cited. The new statute has. provided a shorter and simpler method of adjustment, I must, therefore, .sustain the petitioner’s objection that the account of the respondent is on its face incomplete. It may be amended and after ■amendment the petitioner will be allowed to file new objections,

No. 2. Petition under section 2606 Code Civ, Pro,, for delivery of trust property:

p. 377

In tbe foregoing memorandum I have held that tins respondent as executrix of her late husband must account not only for such assets of Mr. Fithian’s estate as have come to her hands, but for all assets of that estate that at any time came to the hands of her deceased husband. But the authority of the surrogate under section 2606 of the Code of Civ. Pro. to compel an executor or administrator of a deceased executor or administrator of a decedent, “ to deliver over trust property ” of such decedent, is limited to such property as has come to the possession of or is under the control of the representatives of such decedent’s deceased executor or administrator. Even as regards such property the surrogate cannot direct a delivery to any person claiming as legatee, next of kin or creditor of such decedent. The statute contemplates a delivery into court or to a newly appointed representative of the decedent’s estate. By no other course could the rights of all persons interested in such estate be properly protected (Spencer v. Popham, 5 Redf., 425). This application must be denied.