In re Wood

First, Application of Wm. Wood. Under all the circumstances disclosed in the papers before me I must grant the motion of the respondents for the re-settlement of the order of July 10,1886, directing them to account. Wm. Wood, who instituted the proceeding in which that order was entered, has since its entry filed his consent that the-proceeding be discontinued. It is doubtful, in view of this-fact, whether an order could now be lawfully entered therein upon motion of any of the persons who have sought to intervene. The only authority for the voluntary intervention, in proceedings for executors’ and trustees’ accountings, of any person other than the petitioner or petitioners and the person or persons by him or them caused to be cited, rests upon sections 2731 and 2810 of the Code of Civil. Procedure.

Assuming what is not altogether clear, that the right to such intervention exists in compulsory accountings as well as in accountings had' at the instance of a petitioning executor or trustee, the sections referred to do not sanction, such intervention until “the hearing.” Now, no “hearing ” has as yet been entered upon in the case at bar, and there is much force in the respondents’ contention tnat as. this proceeding was instituted by William Wood alone, his. abandonment of it has made any hearing impossible. Even if this contention is unsound, the proceeding must be dismissed.

Of the persons who are named as parties in the July order, one is dead, and all the others have either formally consented to a discontinuance or have released their interests, in the estate.

There may be grave reasons to doubt whether the course-pursued by the executors and trustees in affecting settlements with these persons is authorized by the will, un^ler which they have been acting, or will hereafter, in case it is. assailed, be sanctioned by the surrogate; but this matter does not now arise for determination.

Second. Application of Mary A. Wood, as administratrix,

The respondents allege in their answer that prior to the commencement of the proceeding at bar, the petitioner brought against them in the supreme’court an action which is still pending, and in which the administratrix of Martin. Wood, deceased, may obtain the very relief which she is here seeking.

It is true that she does not in that action expressly ask for an accounting, but they insist that something in the nature of an accounting can nevertheless be had if there shall be need of it, and that a recovery upon the claims which the administratrix is prosecuting in the supreme court would make any accounting before the surrogate quite unnecessary.

The effect upon the proceeding at bar of the pendency of the action referred to need not, however, be the subject of serious consideration. For I must order an account to be filed upon the application in behalf of Mrs. Woods’ children, and when such an account is presented, Mrs. Wood, as administratrix, may doubtless make herself a party to the proceeding for its settlement notwithstanding the continued pendency of the suit in the supreme court.

The children referred to are heirs and next of kin of théir late father, Martin Wood, and are entitled as such under the first subdivision of the second clause of this testator’s will, to receive upon the death of their uncle, Joseph Wood, a legacy of $5,000. This is an interest which entitles them to demand an accounting. Code Civil Procedure, §§ 2726, 2808, 2514, subd. 11; Campbell v. Purdy, 5 Redf., 434; Hood v. Hood, 85 N. Y., 561 -577.

The respondents further claim that the petition in behalf of the infants, should be dismissed because they do not appear either by general or special guardian.

This contention is unsound Sections 2726 and 2808, supra, expressly declare that in behalf of an infant interested in a decedent’s estate “ any person,” may present a petition praying for an accounting by such decedent’s executor, administrator or testamentary trustee. Thereupon a citation must be issued directing the person cited to show cause why he should not be ordered to account.

If upon the return day of such citation he makes application for a voluntary accounting, he cannot be "ordered to

If a person cited on behalf of an infant to account as executor, administrator or trustee fails on the other hand to file a petition for a voluntary- accounting, but undertakes, as the respondents have undertaken in the case at bar, to show cause why he should not be required to account, the petition in the infant’s behalf should not be dismissed without affording him an opportunity by general or special guardian to oppose its dismissal.

If the infant’s petition is granted, and an account ordered, and there is no appearance by a general guardian, no further steps should be taken in the proceeding until after the appointment of a special guardian.

An order may be entered directing the respondents to account.