43 Barb. 412 | N.Y. Sup. Ct. | 1864
By the Oourt,
I think that the question put to the petitioner, when examined as a witness, as to whether her father had money in his possession belonging to her at
The evidence offered to prove that the deceased deposited the amount of the legacy in the savings bank, and so declared at the time of making the deposit, was not admissible. It involved a verbal declaration of the deceased which was not competent to contradict or to control the written provisions of. the will. Even if admitted, I do not discover that it would have had any very material or important bearing upon the subject matter of the proceedings.
I see no objection to the form of the decree in requiring the interest to be paid up to the date of the decree. Nor is it of any consequence that the decree does not provide for commissions to the executors. These can be allowed upon a final accounting, and there is nothing to show that they were claimed on the hearing. No exception appears to have been taken to the decree on this account, or in consequence of the provision as to the time when the interest should be computed, and perhaps it is too late to urge these points now.
As the executors had not paid over the interest, as required by the will, I am inclined to think that costs were properly chargeable against them. There was some evidence to show -a request to pay, and as costs are somewhat discretionary in cases of this kind, I do not think that we are authorized to hold, under the circumstances existing, that the surrogate has abused his discretion in this respect.
I also think that the surrogate, in his decree, very properly reserved the question as to the deductions of any advancements and expenditures made by the deceased for the support and maintenance of the infants during his life,
This brings me to a consideration of the only question remaining in the case. In behalf of the appellants it is insisted that the surrogate’s court did not posses? any jurisdiction and that the power claimed and exercised was not among those conferred upon him by law. The surrogate’s court is one of special and limited jurisdiction, and can only exercise such power as the statute confers. The authority, however, to do certain acts, or to exert a certain degree of power, need not be given in express words, but may be fairly inferred from the general language of the statute; or if it be necessary to accomplish its objects, and to the just and useful exercise of the powers which are expressly given, it may be taken for granted. (Seaman v. Duryea, 10 Barb. 523. See also Cleveland v. Whiton, 31 id. 546.)
The surrogate is authorized by the revised statutes to direct and control the conduct and settle the accounts of executors and administrators, (2 R. S. 220, § 1, sub. 3;) to enforce the payment of debts and legacies, (Id. sub. 4;) to administer justice in all matters relating to the affairs of deceased persons, according to the provisions of the statutes of this state, (Id. sub. 6.) Under and by virtue of these enactments I think there is ample authority to compel the
A remedy lies for thus failing to perform a plain and positive duty, and even although the executors might be made liable in an equitable action instituted in the supreme court for that purpose, yet it by no means follows that the surrogate is deprived of jurisdiction. It is obvious that the powers of the surrogate, as defined by statute, were not intended to exclude cases like the one at bar.
The revised statutes, as originally adopted, upon a final accounting, only ousted the surrogate of jurisdiction over the accounts of executors, when the latter were liable to account to a court of equity by reason of any trust expressly created by a last will and testament. (2 R. S. 94, § 66.) This was subsequently provided for by" an amendment of section sixty-six, (Laws of 1850, p. 587,) which authorized testamentary trustees to settle their accounts before the surrogate, and thus the jurisdiction of the surrogate was enlarged in this respect.
Willard, in his work on Executors, at p. 36, after citing the provisions of the revised statutes (vol. 2, p. 220, § 1) before referred to, employs the following language in regard
Whatever trust may have been created by the testator's will was but an ordinary case of trust, in reference to which the surrogate had jurisdiction. It certainly did not establish an express trust. (3 R. S. 5th ed. 16.)
In my opinion the surrogate had power to entertain the proceedings instituted before him, and to make a decree in the premises; and in this respect he has not exceeded his jurisdiction. As no error appears to have been committed in the proceedings, it follows that they must be affirmed, with costs.
Peckham, Miller and Ingalls, Justices,]