Bronson v. Ward

3 Paige Ch. 189 | New York Court of Chancery | 1831

The Chancellor.

From an examination of the facts in this case, I am satisfied the decree of the surrogate, appealed from in this case, was not a decree for the final settlement of the account of the administrator, within the meaning and intent of those provisions of the revised statutes which allow three months for the appeal from such a decree. (2 R. 8. 95, § 67. Id. 610, § 105.) The proceedings were instituted in 1828, under the provisions of the laws then in force, and which only allowed thirty days for an appeal. The same distinction, however, existed at that túne, as now, between a final settlement of the account of the administrator and the taking of an account for the purpose of obtaining payment of a particular debt or legacy. By the practice of the ecclesiastical courts in England, which was the foundation of our proceedings before surrogates, the legatees, next of kin, and creditors of the testator or intestate might severally, or in several suits, compel the executor or administrator to render an account. To prevent the great trouble and vexation to which the representative of the decedent was thus subjected, he was. permitted, so soon as he was cited to account by any of these persons, to cite the next of kin in special, and all others who had or claimed an interest in the estate in general, to come in and see the taking of the account, and to hear the testimony of the witnesses, so as to obtain the final sentence of the court; by which the representatives were freed from rendering any further account, except to such persons as were infants at the time time such account was taken. (Conset's Eccl. Pr. 296, pt. 6, ch. 3, § 1, sub. 8. Cockb. Eccl. Pr. 143.) The provisions in the revised statutes "relative to the final settlement of the account are merely an extension of this principle. And the 60th section of the statute, (2 R. S. 93,) expressly recognizes the distinction between an account taken between one or more creditors or legatees, and the taking of a final account where all the parties interested in the estate are cited to appear. (See revisor's note to sec. 63.) It also appears from the affidavit annexed to the petition of the respondents that these three creditors were alone parties to this proceeding, and that neither the next of kin or any other person was cited before the surrogate. That court therefore could not make a decree for the final settlement of the accounts of the administrator. The surrogate accordingly decreed the payment of the debts due to these creditors out of the amount ascertained to be in the hands of the administrator ; leaving a small balance undisposed of, to be accounted for by him on the final settlement of his accounts with those who might be entitled to the residue of the estate. This is therefore a case coming within the 107 th section of the revised statutes relative to appeals, &c. (2 R. 8. 610.) And as it was not entered within the thirty days, this court can afford no relief to the appellant.

But in this case, if I had arrived at the conclusion that the appeal was entered in time, I do not think that the appellant has furnished any sufficient excuse for his neglect to file his petition of appeal, and to procure the transcript. The statute has authorised this court to regulate the practice on appeals from surrogates, &c. And under the power thus given, the 118th rule requires the appellant to file his petition of appeal with the register or assistant register within fifteen days after the appeal is entered, or the appeal shall be considered as waived. Nearly a year has elapsed since the appeal was entered and no petition of appeal has yet been filed, and no transcript has been returned, although it was long since made out by the surrogate. The conversation between the appellant and Field was before the appeal was entered; and the latter in substance denies that he ever requested the appellant to stay the proceedings.

The application for leave to file the petition of appeal must therefore be denied, and the appeal must be dismissed, with the costs of these applications.