In re the Judicial Settlement of the Accounts of the Executors of Verplanck

Headnote

Final accounting — the surrogate may construe the provisions of a will, so far as may be necessary to enable him to make a proper decree for the distribution of the estate.

Appeal from a decree of the surrogate of Dutchess county, made on the final settlement of the accounts of the executors of Mary H. Verplanck, deceased.

The court at General Term said: “I am of opinion that the surrogate had jurisdiction to pass on the validity and interpretation of the various provisions of the will, so far as was necessary to make a proper decree of distribution. Otherwise, it is plain that any party in interest, by raising a controversy, could prevent a distribution of the estate by the surrogate. I cannot find that such power has ever been denied. In Grill v. Brouwer ( 47 N. Y., 549 ), the' Court of Appeals, upon an appeal from a surrogate’s decree of

distribution, passed upon the question whether a legacy under the terins of the will had lapsed. In Orton v. Orton (3 ICeyes, 486), on a similar appeal, it was determined whether, under the terms of the will, a legacy to the widow abated ratably with other legacies. On a like appeal in Ferrer v. Pyne ( 81 N. Y., 281 ), a question, identical with the one involved in this case, was determined.

“ If there had been any doubt in the minds either of the profession or the court concerning the jurisdiction of the surrogate in this matter, I think the point would have been made in some of the cases- cited.”