In re the Accounting of Soule — 55 N.Y. St. Rep. 250

Majority

p. 250

In the Matter of the Accounting of Howard Soule et al., Ex’rs.

(Supreme Court, General Term, Fifth Department,

Filed October 20, 1893.)

Headnote

Surrogates’ court—Opening decree.

The surrogate has no jurisdiction to open a decree made by him on the. ground that by inadvertence of the attorneys it does not accord with the understanding of one of the parties as to the effect of the agreement upon which it was based. The “ other sufficient cause” for which a surrogate may open a decree must be of the same or like nature with the causes particularly specified, such as fraud, newly discovered evidence or clerical error.

Appeal by George S. Everts, one of the executors, from an order of the surrogate of Cayuga county, opening and modifying a decree of his court previously made in the same matter.

Oscar Tryon, for app’lt; F. E. Storke, for resp’ts.

The controversy here is solely between one of the present executors of the will and the personal representative of a former executor,- deceased; it relates solely to the award of commissions to the two, respectively, and it must turn, as we think, upon the single question of the power of the surrogate to make the order appealed from.

The testator, Lyman Soule, died in November, 1885. leaving a will by which he nominated Howard Soule, Charles F. Durston and Charles G. Briggs as its executors, and they received letters testamentary in June, 1886. Mr. Briggs died in August, 1887, and Mr. Everts was appointed his successor in April, 1891.

In May, 1891, the proceedings for an accounting were instituted which finally resulted in the decree the modification of

p. 251

which is the subject of this appeal. All parties interested were duly served with citation to such accounting, among whom the respondents here, executors of the will of the deceased executor, Briggs, appeared by attorneys, who represented them throughout the proceedings. Those proceedings were adjourned from time to time until August, 1892, during which period of more than a year negotiations for an amicable adjustment of all questions arising upon the accounting were pending between counsel for the numerous parties interested, and frequent conferences on the subject were held, at nearly all of which one or the other of the attorneys for the executors of Briggs were present. The result of these negotiations seems to have been a compromise and settlement of all differences between the parties and an agreement, in which all united, upon the provisions of the decree to be entered, and it was delegated to two of the attorneys, one of whom represented the executors and one various legatees, to draft the decree, and the decree thus prepared was duly entered by the surrogate as of the 1st day of August, 1892.

Among the matters so agreed upon was a provision to the effect that three full commissions should be allowed to the executors, one of which should be awarded to Mr. Soule, one to Mr. Durston, and the third to Mr. Everts and the estate of Briggs jointly; and the agreement between the two last named parties was that such third commission should be divided equally between them; and so it was provided by the decree as entered so far as the provision on that subject went. But just at this point the difference arose. Counsel for the executors of Briggs depose that they understood that the agreement for an equal division of the commissions in question extended to all the commissions earned and to be earned throughout the entire administration of the estate, and supposed that the decree to he entered would so provide; whereas the decree as entered made provision only for commissions earned up to its date and was silent in respect to the award of commissions thereafter to be earned. It was on the ground of this omission to provide for the distribution of future commissions that the order was made from which this appeal was taken. The application for that order was not made until more than three months after the decree was entered, and after Mr. Everts had been called upon by the executors of Briggs and had declined to sign an agreement to the effect that ■all future commissions awarded to him should be equally divided with them.

The order appealed from, in modifying the decree previously entered, entirely ignored the agreement for equality of division between the Briggs estate and Mr. Everts upon which the provisions of the decree, in that respect, had been based, and made the division upon an entirely different basis and in about the proportion of 25 to the former to 11 to the latter.

We do not think it necessary to examine the grounds upon which the new apportionment was made,because we are of opinion that the surrogate was wholly without jurisdiction, upon the al

p. 252

legations and proofs before him, to open the decree for any purpose or to modify it in any respect.

The surrogate and the surrogate’s court are tribunals of strictly statutory jurisdiction. Section 2481, subdivision 6, of the Code of Civil Procedure confers upon either of them, as the case requires, the sole power which is possessed by either to open or modify a decree of the surrogate’s court; and the limitation of that power is prescribed by the same subdivision, viz: that it may be exercised only “ for fraud, newly discovered evidence, clerical error or other sufficient cause.” There was in this case no suggestion of fraud, of newly discovered evidence or of clerical error, but only, at the most, that the provision of the decree in question was not fully in accordance with the understanding of one party as to the effect of the agreement—the terms of which were not in dispute—which was the basis of that provision. Such a ground of complaint is clearly not within the purview of the phrase “other sufficient cause,” as employed in the statute above quoted. It is well settled that the application of those words is strictly controlled by the rule of noscitur a sociis, and, accordingly, that the other sufficient cause must be of the same or like nature with the causes particularly specified. In the Matter of Hawley, 100 N.Y., 206 ; In the Matter of Tilden, 98 id., 434: In the Matter of Kranz, 41 Hun, 463 ; 3 St. Rep., 297 .

. It seerns very clear that neither the allegations nor the proofs of the moving party in this case disclose any ground for the opening of this decree 'which are at all of the nature of fraud, newly discovered evidence or clerical error. The provision complained of was not based upon evidence adduced before the surrogate, but upon an agreement between the parties which was-arrived at in the course of negotiations extending over a period of many months in which the respondents here were fully represented. They had the fullest opportunity to inspect the draft decree before it was entered, and there is really no reason to suppose that they would have objected to the provision in question if ■ they had so inspected it, since their objection now made is not to the terms of the provision as made, but to its possible effect upon the award of commissions in the future. In short we think it must be said that the error complained of, if any was committed, was the result of inadvertence, merely, on the part of the attorneys for the representative of Briggs, and was not within the provisions of the statute which confers upon the surrogate the power to open and vacate or modify a decree of his court.

For the reasons stated we are of the opinion that it was error to grant the order appealed from, and that the same must be reversed.

Order of the surrogate of Cayuga county, appealed from, reversed, with ten dollars costs and disbursements, and the application to open the decree denied.

Lewis, Haight and Bradléy, JJ., concur.