Elsworth v. Hinton

Headnote

An accounting in a Surrogates Oourt is conclusive as to all parties to the proceeding, although certain of the persons in interest may not he parties thereto.

Appeal by certain of the defendants from part of an interlocutory judgment in an action brought by the plaintiffs to obtain an accounting, and also from orders amending and correcting the findings of fact and conclusions of law therein.

The appeal was based on the proposition that an accounting of an executor or testamentary trustee in a Surrogate’s Court, where there is an omission to cite some of the persons interested in the estate, is wholly void even as between those interested parties who are cited and appear in the proceeding without in any manner objecting to its validity or regularity.

The court at General Term said: The learned counsel for the appellants refers us tó no case which enunciates this doctrine, but argues that such is the effect of the various statutes relating to the settlement of the accounts of executors and testamentary trustees in the Surrogate’s Court, in view of the limited jurisdiction of that tribunal. If this contention is correct, it would seem to follow that a score of persons might participate without objection in an accounting lasting for months and perhaps for years, and if it turned out after a decree that a single person who ought to have been cited was overlooked and not cited at all, none of the actual litigants would be bound by the adjudication of the surrogate, even as between themselves.

“ A construction which would lead to such and similar results is not to be adopted, unless plainly required by the language of the legislature. We think the statutory provisions under consideration here are capable of a more reasonable interpretation; and that, as between the persons interested in an estate, who are cited and appear upon the accounting of an executor or testamentary trustee before the surrogate, the decree, in such proceeding is binding, and is not rendered ineffectual, so far as the accounting relates to the rights of the parties actually represented as against one another, by the omission to cite other persons having an interest in the estate. Speaking of decrees upon an executor’s accountings, the Court of Appeals say, in the Matter of Tilden ( 98 N. Y., 434 , 441) : ‘ There can be no doubt that these various decrees were binding upon all of the adult heirs and legatees who were dul/y cited to appea/r,’ thus clearly implying that there might have been an omission to cite others, and yet the proceedings as to these parties would have been valid.

“ So, in the present case, we think the appellants were bound by the decrees of the Surrogate’s Court in the several accountings to which they were properly cited, relating to the estate in which they

have a life interest, notwithstanding the failure to cite the parties who will become entitled to the property upon the termination of the life estates.

“ The interlocutory judgment and the orders appealed from must, therefore, be affirmed with costs.”