In re Estate of O'Neil

Headnote

Power to open <yr modify the decree of a Surrogates Court, entered on a final accounting by an executor, under section 2481 of the Code of Civil Procedure, must be exercised, with great crn'e.

Appeal from an order made by the Surrogate’s Court of Ulster county, amending a decree entered upon a final accounting had in the estate of Mary O’Neil, deceased.

The court at General Term said: “The will of the testator directed the executor to invest immediately $2,500, and pay the interest semi-annually to Mary O’Neil during her life, and the principal, upon her death, to her daughters, Jane C. Lake and Mary D. Gunn. The executor did not invest the principal, but used it himself and paid the interest semi-annually to Mary O’Neil, from 1868 to 1875, when she died, and the executor in the same year paid the principal to Jane C. Laxe and Mary D. Gunn. Upon his final accounting October 4, 1886, the surrogate found that the executor had a balance of $2,096.43, distributable among the residuary legatees, and he decreed that fifty-nine dollars and seventy two cents thereof, be paid by the executor to Jane C. Lake, and an equal sum to Mary D. Gunn.

“ In April, 1887, the executor presented a petition to the surrogate, the successor of the officer who made the decree, alleging that no allowance was made in the decree upon the final accounting for commissions upon the said $2,500, and the interest thereon. Why it was not made the petition does not state, and the case does not show. Nor does it appear upon what sums the executor did receive or retain commissions. The surrogate opened and amended the decree so far as to allow the executor commissions enough to equal the sums payable under the decree to Jane G.Lake and Mary D. Gunn, and to set such commissions off against their said shares, and to decree that nothing was payable to them upon account thereof. No case was made justifying the opening or modification of the decree. Section 2481, subdivision 6, Code of Civil Procedure, expressly directs the surrogate not to do either, except ‘ in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers.’

“ The courts have frequently called attention to the care with which the power must be exercised, and not infrequently have corrected its inconsiderate use. (Matter of Tilden!s Executors, 98 N. Y., 434 ; Matter of Handley, 100 id., 206; Matter of Krcmz, 41 Iiun, 463; Matter of Hey Ermcmd, 24 id., 1.) No court of general jurisdiction would permit its decree to be opened upon the mere suggestion or proof of one of the parties that some item of credit was not allowed him. When a party has had his day in court, he must show that it was not Ms fault that he did not improve it, before he can get another day on the same matter.

“ The order should be reversed with ten dollars costs and printing . disbursements.”