Williams v. Turfler — 61 N.Y. St. Rep. 283

Majority

p. 283

In the Matter of the Estate of Elizabeth Turfler. Amy Williams, App’lt, v. Jacob C. Turfler, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May, 1894.)

Headnote

Executors—Account—Objections.

Leave to file objections to an executor’s account, after tb$ time has expired, is discretionary and may be allowed upon strict terms.

Appeal by Amy Williams, one of the legatees named in the last will and testament of Elizabeth Turfler, deceased, from so much of an order or decree of the surrogate’s court of the county of Rockland, entered in the Rockland county surrogate’s court, as denied the appellant’s motion for the removal of the executor of the said estate and the appointment of an administrator with the will annexed, and as denied her leave to file certain supplemental objections to the. account of the said executor.

An application was made by Amy Williams to remove Jacob G. Turfler as executor of the estate of Elizabeth Turfler, deceased, and for leave to file supplemental objections to the accounts of such executor, and upon the hearing of such application before the surrogate an order was made denying the motion for the removal of the executor and the appointment of an administrator and further providing that said Amy 'Williams have leave, and the same hereby is granted, to file and serve within five days hereafter one supplementary objection to the accounts of said executor now in process of settlement in this court, to wit, an objection in writing relating solely to the averment made that the executor has failed to charge himself in his said accounts with certain moneys which belonged to the estate of said Elizabeth Turfler, but which he wrongfully retained as commissions due him as one of the executors of Greorge 0. Turfler. which objection shall specify the sum so to be charged; provided, however, that the said Amy Williams shall, within the time aforesaid, stipulate that she will not plead in bar the Statute of Limitations to any action or proceeding which may be brought against her at any time to recover any moneys paid to or received by her in excess of her proper share or portion of the estate of said Elizabeth Turfler, and that the trial of a certain action now pending in the supreme court of Mew York, Kings county, brought by said Amy Williams against said Jacob G. Turfler and Greorge F. Turfler shall be postponed at

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least thirty days if, at the time said action is called for trial, the final decree upon the accounting of said Jacob 0. Turfler, as said executor herein, and the final accounting of said Jacob 0. Turfler and George F. Turfler, as executors of George C. Turfler, now pending in this court, shall not have been entered, and notice thereof received by said executors’ attorneys.

T. C. Cronin and J. Newton Williams, for app’lt; William Ford Upson, for resp’t.

—We find no reason to remove the executor. So far as the papers show his duties have been conscientiously performed.

According to the decision of the surrogate it appears that the mother received, under the will, a life estate in several houses in New York city, on which the executor collected upwards of $111,000 rents, and paid the net proceeds, $72,000, to the mother.

When the executor’s accounts were filed the ruling was made that the executor, as such, had no right to collect the rents nor to charge commissions therefor. But his good faith is not impeached, and if the beneficiaries under the will are to be allowed to file objections at this late day, it should be upon conditions as strict as those imposed below.

It may be added that it was a matter of discretion with the surrogate which this court cannot well reverse.

The order appealed from should be affirmed, with costs.

Brown, P. J., and Dykman, J., concur.