38 Barb. 661 | N.Y. Sup. Ct. | 1863
Letters testamentary upon the last will and testament of Simon Bichardson were granted, on the 26th of November, 1850, by the surrogate of the county of Kings, to the widow, Ann Bichardson, the two sons of the testator, William S. Bichardson and Stephen F. Bichardson, and to his brother Marvin Bichardson. The widow and the two sons were also entitled to distributive shares of his estate. In April, 1857, the letters were revoked as to Marvin Bichardson, and the widow died previous to the year 1859, leaving William S. and Stephen F. the executors of the will. On the 12th May, 1856, William S. and Stephen F. Bichardson assigned and conveyed all their interest and claim in and to the estate, as legatees or otherwise, to certain persons through whom the appellant Everett Clapp became the owner of their right and interest, previous to the year 1859. On the 3d of February, 1859, the appellant, as such assignee, applied to the surrogate for an order requiring the executors to account; upon the return of which Stephen F. Bichardson appeared and presented his petition for a final settlement; and such proceedings were had thereon that a decree for such final settlement was made and entered on the 1st of June,1861. By this decree William S. Bichardson and Stephen F. Bichardson, as such executors, were adjudged and decreed to pay to Grace C. Meserole and others, -the respondents in this proceeding, respectively, certain sums of money in the decree specified for their shares under the will, from the assets and proceeds of the estate in the hands of the executors for distribution. On the 14th of October, 1859, while the proceedings for the final accounting were being had, William S. and Stephen F. Bichardson were superseded in their office as executors, by an order of the surrogate. And on the 13th of December of the same year, Everett Clapp, the appellant, was duly ap
The distributees entitled to the estate are numerous, and the sums awarded to each are specifically set out in the decree, and need not be repeated here. The error complained of does not consist of a miscalculation of figures, nor of the allowance or disallowance of any item of the administrator’s accounts. No éxception is taken to them. The appellant, in his seventh point, alleges that the decree is erroneous in this respect: That it charges each legatee only with the advances charged to them in the will and the money actually received from the estate' He insists they should be charged also with the sums decreed to be paid to them respectively by the decree upon the final accounting of William S. and Stephen F. Richardson, of the date of the 1st of June, 1861, before referred to. It is thought and claimed by the appellant that the decree for the sums of money in the hands of the superseded executors, at the time of the final accounting by them, is a payment and satisfaction pro tanto of their shares of the estate. The distributees have done nothing to prejudice or impair their claim upon the trust property. They have been passive throughout. There is no proof that any part of these moneys has been paid. Indeed it is not alleged they are paid; but the decree ascertaining the balance of moneys in the hands of the executors for distribution at $24,646.03, and directing the manner of its distribution, is said to be a satisfaction and extinguishment of the claims of those to whom it is made payable, to the extent of such amounts respectively. In this view I cannot concur. It must be borne in mind that the primary object of the proceeding which resulted in the decree of the 1st of June, 1861, was the final settlement of the accounts of the two Richard-
The decree of the surrogate should be affirmed with costs. But for greater safety it should also be declared, in the order of affirmance, that the sumé of money mentioned in the decree against William S. and Stephen F. Richardson, of the 1st of June, 1861, are to he deemed the undistributed assets of the estate, with leave to any of the parties interested therein to apply to the surrogate at any time hereafter for further directions in regard thereto.
Emott, Brown and Lott, Justices.]