103 N.Y.S. 22 | N.Y. App. Div. | 1907
Benjamin Richardson, the testator, died on the 20th day of February, 1889. He left a last will and testament which was admitted to probate, by which William T. Washburn and Emma J, Richardson were appointed executors. By this will, after leaving some legacies and devising some real estate, the testator gave to his executors in trust the residue of the real estate and to his granddaughter, Ella Birdsall, the residue of his personal- estate. He directed his executors to sell all said real estate, from time to time, as the same could be sold to advantage, and out of the proceeds thereof to pay his just debts and the incumbrances upon said real estate, and after all of the said debts, incumbrances and legacies had been paid, to pay the balance remaining to such of his children as should be living at the time of his death. The executor and executrix qualified. Finally an application was made to compel them to account and thereupon an account was filed ; objections thereto were filed, which were referred to a referee.' The proceed ing before the referee upon this accounting continued until some
I do not. think that the surrogate had .power to "make any- such order. -While the surrogate would have power to relieve- the par
It is clear that this instrument cannot be set aside in this proceeding, and the order appealed from. should, therefore, be reversed, with ten dollars costs and disbursements, payable by the petitioner, and the proceeding dismissed, with costs.
Patterson, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and proceeding dismissed, with costs, payable by respondent. Order filed.