In re the Estate of Fithian — 9 N.Y. St. Rep. 279

Majority

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In the Matter of the Estate of Freeman J. Fithian, dec’d.^[1]

(Supreme Court, General Term, First Department,

Filed May 13, 1887.)

Headnote

1. Executors and administrators—Power of surrogate to compel executor OF AN EXECUTOR TO ACCOUNT.

A surrogate has power, under section 3606 of the Code of Civil Procedure, as amended hy chapter 399 of Laws 1884, to compel an executor of another executor to account for property received hy the latter.

3. Same—Code Civ. Pro., § 3606—Effect of amendment made by chapter 399 of Laws 1884

By the amendment of Laws 1884, chapter 399, to section 3606, Code Civil Procedure, it was intended to develop all that the representative executor knows or can know about the trust estate and in reference to it, to compel the delivery of any part of it which has reached his hands or is under his control. The surrogate may, upon the accounting, determine what the representative executor owes to the trust, but the decree shall not be evidence conclusive that the representative executor has the assets to pay. It is a proceeding in the nature of an investigation. The design of the law is to invest the power in the surrogate to enforce the delivery of the trust estate remaining.

Appeal from an order of the surrogate directing an amended account.

G. W. Cotterill, for app’lt; Horace Secor, Jr., for resp’t.

The question presented by this appeal is whether the surrogate has the power under 2606 of the Code to compel an executor of another executor to account for property received by the latter. The learned surrogate has declared in the affirmative of this inquiry, and his conclusions are based upon the amendment of the section by chapter 399 of the Laws of 1884. He had, prior to that change, in a series of decisions, held the negative, save to the extent that the representative of the deceased executor had come into possession of assets belonging to the trust estate. See opinion herein and cases cited. 5 N. Y. State Rep., 375.

The section prior to the amendment was as follows :

“Section 2606. Accounting by executor, etc., of deceased executor. Where an executor, administrator, guardian, or testamentary trustee dies, the surrogates court has the same jurisdiction, upon the petition of his successor, or of a surviving executor, administrator or guardian, or of a creditor, or person interested in the estate, or of a guardian’s ward, to compel the executor or administrator of the decedent to account for and deliver over any of the trust property which.has come to his possession or is under his control, which it would have as against the decedent if his letters had been revoked.”

By the amendment the words ‘‘ for and deliver over any of the trust property which has come to his possession or is

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under ms control ” were not omitted, but transposed as we-see. This removed the limit or restriction which existed, and provided for a general accounting such as might under sections 2603-2605 be enforced against an executor whose letters had been revoked—a general accounting, and not confined to the trust property which had come to his possession or under his control. The amendment contained other provisions as follows :

“With respect to the liability of sureties in, and for the purpose of maintaining an action upon, the decedent’s-official bond, a decree against his executor or administrator, rendered upon such an accounting, has the same effect as if an execution, issued upon the surrogate’s decree, against the property of decedent had been returned unsatisfied during the decedent’s life time. So far as concerns the executor or administrator of decedent, such a decree is not within the provisions of section 2552 of this act. The surrogate’s court has also jurisdiction to compel the executor or administrator, at any time, to deliver over any of the trust property which has come to his possession or is-under his control; and if the same is delivered over after a decree, the court must allow such credit upon the decree as justice requires.”

The learned counsel for the appellant contends that they do not show an intention to require the executor to account for any property other than that received by him, and that-the intention of the legislature to be deduced from this and other sections is to compel the delivery of such property at any time, even after a decree, and that but one decree only was contemplated by the section, which was a decree to deliver. There are, it is true, some reasons to support the contention, but the transposition of the words to which particular attention has been called, seems to warrant the thought that it was intended to develop all that the representative executrix knew, or could learn about the-trust estate and in reference to it, if circumstances demanded the exercise of the power, to compel the delivery of any part of it which has reached the hands of the representative-executor or is under his control, although not developed by the accounting, or until after a decree based upon such accounting.

The design to enlarge the sphere of the accounting seems to be apparent from the context by which it is declared that, so far as concerns the representative executor, the-decree rendered upon such an accounting with respect to the liabilities of the sureties, is not within the provision of section 2552 of the Code, that is to say, shall not be conclusive evidence that there are sufficient asssets in his hands-to satisfy the sum which the decree directs him to pay or-

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for which the order permits the execution to issue. The surrogate may, upon the accounting, determine what the representative executor owes to the trust, but the decree shall not be evidence conclusive that the representative executor has the assets to pay. It is, therefore, a proceeding in the nature of an investigation, based upon the proposition that the representative executor, having succeeded to the property and papers of the decedent, whom he represents, must be in a condition to furnish the best information in regard to the estate. It does not impose any liability upon him beyond the property he has of the trust estate, and should not in the nature of the relation he holds, to the decedent. Its design is also to invest the power in the surrogate to enforce the delivery of the trust estate remaining.

This is the effect of the transposition of the words particularly noted, and is a gift of authority. It is suggested that the view expressed by the surrogate is in contravention of the Revised Statutes, which declare that “ an executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof as such executor. 3 Rev. Stats. (7th ed.), 2395, § 11.

But, with great respect, it is thought this does not not. affect the question which relates to existing things, not what is to be gathered in or received, but what was found of the trust estate, and possession taken either formally or informally, and what is the condition of the estate as far as it may be known and disclosed. The law does not seek to create impossibilities, and when an account is sought all that can be required is what is known, not what may be conjectured.

The provisions of the Revised Statutes, prohibiting the interference of an executor with the unadministered estate of the first executor (3 Rev. Stats., 71, §§ 11, 17; id. [7th ed.], 2395, § 60: id., 2292,) are not inconsistent or in conflict with the authority conferred upon the surrogate, which is given, as already said, to secure the exposition of the trust estate so far as it may he, and its delivery to the proper person. Statutes creating summary remedies unknown theretofore are often regarded by practitioners as questionable in policy and uncertain in their construction and implication, but this is the epoch of innovation and all seeming incongruities in our legal system are sought to be remedied by legislation which, gently blending with prevailing laws, produces greater harmony and simplicity in the administration of justice. The object in view thus suggested is not

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always accomplished, for sometimes confusion, worse confounded, is the outcome. The section under consideration is not free from criticism, but it it is thought it works out the problem for which it was amended, and that its interpretation by the surrogate was correct.

Ordered accordingly, but, as the question is new, only the disbursements of the appeal are allowed to the respondent.

Van Brunt, P. J., and Daniels, J., concur.