Brown v. Brown, 53 Barb. 217

Brown v. Brown

53 Barb. 217 | N.Y. Sup. Ct. | 1869

By the Court, Johnson, J.

This appeal is. from the decree of the surrogate upon a final accounting by the defendant; and one of the principal questions in the case is, whether the accounting in question was properly made upon the basis • of a former final accounting in 1861, or whether it should not have gone back to the commencement of the defendant’s trust, as executor, and embraced the whole subject of assets, charges and credits. I am clearly of the opinion that the settlement of -1861, was the proper basis of this settlement, and that it was not necessary for the defendant to go behind it, for any purpose, by reason of any thing which appears in the case upon this appeal. That was a final settlement, by the very terms of the decree, and the proceeding was instituted for the purpose of having it final. Citations were issued to all the parties interested; and the same parties who appear here, then appeared by counsel, and were heard before the sur-, rogate in respect to all matters embraced in such accounting. A final decree was made thereupon by the surrogate, which the appellants did not appeal from, but suffered to remain as such final decree. The statute provides how the account shall be rendered upon any accounting, and whaf examination may be had. (2 R. S. 92, § 54.)

And where the settlement appears to have been final, and all the parties interested to have been before the surrogate, the presumption must be that the settlement embraced every thing which Was the proper subject of inquiry. (President, &c. of Bank of Poughkeepsie v. Hasbrouck, 2 Seld. 216. Glover v. Holley, 2 Brad. 291. 2 R. S. 94, § 65.) This section declares as to what subjects it shall be conclusive. It would not, I think, be held conclusive, in case it could be made to appear • affirmatively that there were *221other assets which had come to the hands of the executor or administrator, properly chargeable to him, and which had not been embraced in the account. This opinion was expressed in President, &c. of Bank of Poughkeepsie v. Hasbrouck, above cited. The section of the statute referred to does not declare that such settlement shall be conclusive as to the assets which have come to the hands of the executor or administrator. But as that is a proper subject of inquiry upon every such settlement, it should be deemed to have been made, and the decree founded upon the accounting be so far conclusive as to form the basis óf a further final accounting, unless something is shown to have been in the hands of such executor or administrator, as assets, which should have been accounted for, but was-riot. Here nothing is shown, but the point is, that the defendant should have gone back to the commencement as matter of course. I am of the opinion, therefore, that both the auditor and the surrogate were right in holding that the decree on the final accounting in 1861 was conclusive, as the ease stood. The auditor, in his report, says, “there is nothing upon the face of the account or in any proof made before me, which cast any suspicion of inaccuracy or mistake, much less of fraudulent intent in the matters covered ” by such accounting. It appears affirmatively, by the decree and the abstract of the accounts filed, that an account of assets was then rendered by the defendant.

The next question of most considerable importance, relates to the allowance of the charge of $700 a year, paid as an annuity under the provisions of the will. It is for the appellants to show that this was erroneous. There is no copy of the will before us, and I do not see how we can pronounce that allowance erroneous without knowing definitely and precisely what were the terms and conditions of the will, under which the payment is claimed to have been made.

*222[Monroe General Term, March 1, 1869.

From the statement in the report of the auditor in regard to the terms and conditions of the will in that respect, and also in regard to the condition of the estate while such payments were being from year to year made, I do not see but they were properly made. At all events, there is not enough appearing to enable the court to pronounce them improper and unauthorized.

Items one and two in statement B. were properly allowed as credits, as the defendant in statement A. had charged herself with the whole rent as though the whole had been received. The next four iteiaa in statement B. under date of January 9,1861, for taxes paid, seem to have been properly allowed, as the auditor has found that they are not the same allowed in the settlement of 1861, but that those charges then allowed were for taxes of previous years, paid in 1861.

The defendant’s exception to the disallowance of the credit to her, of $34.80 for sodding the burial lot in Mount Hope Cemetery, belonging to' the estate, cannot prevail, or indeed be considered. There being no copy of the will in the case, it is impossible for the court to determine whether it was a proper charge or not. On the whole, I do not find any error which would justify a reversal or modification of the decree. It must, therefore, be affirmed, with costs' of the appeal.

E. D. Smith, Johnson and J. G. Smith Justices.]