1 Pow. Surr. 234 | N.Y. Sur. Ct. | 1892
The first question for examination is the objection that section 780, Code Civil Pro-., which provides for shortening the time for notice of motion to less than eight days by an order to show cause, etc., is not made applicable to the Surrogate’s Court; and subdivisions 4, 6, section 3347, of the Code, are cited in support of the position. I am inclined to think that section 780 is not directly made applicable to the Surrogate’s Court. This section contains the general Code provisions upon the subject of time of notice of motion, and provides it shall be eight days, unless, etc. If the section is not applicable to tire Surrogate’s Court, then, in the absence of any other provision (and I have been able to find none), a notice of motion in this court could be made without special limit as to time of service of notice, etc. But, in the absence of such provision, perhaps subdivision 11 of section 2481 would apply, which provides, in effect, that where jurisdiction is given in any matter to the Surrogate’s Court, and the practice is not prescribed, it shall proceed “according to the course and practice of a court having by common law jurisdiction of such matters.” But, whatever the warrant for the practice of employing an order to show cause to shorten time of notice, the practice is well settled in Surrogate’s Courts to employ it, and it has been so employed both before and since the adoption of the new Code. Redfield, in his work on Surrogate Practice (4th ed.), p. 57,
I am satisfied that the next objection of the creditor, that the Surrogate has no authority to extend the time of the executor to file his bond beyond the five days provided in the order, is technically well founded. But, while the surrogate may not extend the five days fixed by section 2687 in which to file bond to six or ten days, he may, in a proper case, under Code, sections 724, 2538, relieve a party from an order taken against him when he can show it-occurred through “mistake, inadvertence, or excusable negligence,” etc.; and the same relief may be obtained in certain cases hereafter mentioned under section 2481, subd. 6, above cited. But under either section relief must be obtained, if at all, not as a matter of favor, but for the specific reasons or upon the grounds provided in the statute. This disposes of the preliminary objections, and brings us to' an examination of the question whether the executor has presented a case authorizing the surrogate to open or modify the decree made herein on the 7th day of May, 1892, adjudging the executor’s pecuniary circumstances to be such as not to afford adequate security for the due administration of the estate of the deceased, and requiring him to file a bond in the penal sum of $32,000 within five days, or, in default thereof, that his letters testamentary be revoked. Section 2687 of the Code of Civil Procedure provides that if, upon the return of the citation issued under section 2686, the objections to the executor, or any of them, mentioned in section 2685, “are established to the surrogate’s satisfaction, he must make a decree revoking the letters issued to the person complained of. But the surrogate may, in his discretion, * * * allow letters to remain unrevoked * * * [subdivision 3] where the case is within subdivision 5 of that section” (2685)— that is, where the executor is pecuniarily irresponsible—“if the executor gives within a reasonable time, not exceeding five days.
The direction of toe surrogate of the 10th of Hay, 1892, was a decree (section 2687, supra), and this decree was the deliberate and formally expressed judgment of a court having entire jurisdiction both of the person and subject-matter involved. The decree adjudged (1) that the circumstances of toe executor did not afford adequate security to the creditors for the due administration of the estate; and, (2) that the value of the property belonging to the estate at toe time of testator’s death was $16,000. I am satisfied that this decree must remain, unless appealed from, or unless the case can be brought within section 2481, subd. 6, of the Code, which provides that this court may open, vacate, or modify its decree or order and grant a new hearing for “fraud, newly discovered evidence, clerical error, or other sufficient cause,” but with the qualification that “the powers conferred by this subdivision must, be exercised only in like cases, and in the same manner, as a court of record and of general jurisdiction exercises the same powers.” This application must rest upon the ground of “newly discovered evidence.” The ground “other sufficient cause” will not avail to support an application for the introduction of evidence under this section, where its only claim for consideration, in the nature of things, is that it is newly discovered. How, what are the facts appearing on this application as to- toe ground of newly discovered evidence % The creditor alleges in his petition the ownership of the property (the mansion house in Lansinghurgh) in the testator, and its value. A postponement of several days was sought by Hr. Tilley, the executor, for the purpose of submitting to the court proof in regard to the value of the same real estate (he alleging it to be of less value). Proof was subsequently furnished by the executor (without any denial of toe fact, and upon the assumption that the real estate in question belonged to the testator at the time of his death) that it was of toe value of $9,000. The fact, if fact it be, that
Two other questions involving the merits were discussed upon the motion, which, in the view I have taken, are not necessarily involved in the decision of this motion, yet, as the result of my examination of these questions tends to support the conclusion I have reached upon the more technical ground, it may not bo improper to discuss them briefly.
First. As to the question of requiring a bond covering property alleged to be fraudulently conveyed. I am satisfied that while the decision in Peck v. Peck, 3 Dem. Sur. 548, holding “that the Surrogate’s Court, in fixing the bond of the executor, should not take into consideration any property of the title to which the testator or intestate had divested himself during his lifetime, whether a transfer was procured by fraud or otherwise,” states the general rule, yet there is no such hard and fast rule upon the subject, since in some cases the main object in taking out letters is for the purpose of recovering property fraudulently conveyed. Laws 1858, ch. 314, sec. 1, as amended, Laws 1889, ch. 487. “And [it is held] in any case an executor is chargeable with breach of trust for neglect in instituting any action or proceeding necessary to recover assets fraudulently disposed of by his decedent.” In re Cornell, 110 N. Y. 351, 18 N. E. Rep. 142; Hangen v. Hachemeister, 114 N. Y. 566, 21 N. E. Rep. 1046. In such cases, at least, bonds should be required covering the amount of probable recovery, and the statute seems to contemplate the exaction of the same by the proper court.
But, as I have before stated, a decision of the two questions last above discussed are not necessarily involved in the decision of this motion, since I am compelled to hold, under the authorities, that the presentation of the deeds upon this application ■cannot in any just sense be termed “newly discovered “evidence,” so that no ground appears which will warrant the opening or modification of the decree. Motion to vacate or modify the decree of May 10, 1892, denied, with $10 costs of motion, and, upon filing proof that the executor failed to file his bond as required by said decree, a decree may be entered vacating the letters testamentary heretofore issued to said executor.