281 A.D. 147 | N.Y. App. Div. | 1952
Petitioner-appellant is the administratrix, c.t.a., of the estate of George F. Close, deceased. Respondent is the executor of the will of Addie B. Close, deceased, who was the surviving wife of the said George F. Close, and the executrix of his will who qualified and acted as such from its probate for nearly twenty-one years and until she died. As such executrix she never accounted and petitioner instituted this proceeding to compel respondent to account for her conduct of the affairs of that estate (Surrogate’s Ct. Act, § 257), the petition alleging that at the time of her death she had possession as such executrix, of certain personal property of the estate of her deceased husband, now possessed by or under the control of respondent as her executor.
Upon the return of the citation respondent filed what it has termed an answer to the petition but which it also contends constitutes all that may be required of it as an account of the conduct of its testatrix for her acts as executrix, and such, the order and decree appealed from has ‘ ‘ approved * * * as sufficient ”, and thus in effect judicially settled.
By the third clause of his will, the aforesaid testator provided for his wife, respondent’s testatrix, as follows: “ I hereby give, devise and bequeath the use, income, rents and profits of and from all of my property, real and personal, to my wife, Addie B. Close, for and during her natural life, with the right to the said Addie B. Close, to use and expend so much of the principal of -said property, real and personal, as, in her discretion, may be necessary or proper for her comfort ”; and in the next clause he provided that upon the death of his said wife; “ I give,
The order and decree should be reversed and the matter remitted to the Surrogate’s Court below, with appropriate directions.
Heffeream", J. P., Bergaet, Coon and Halperh, JJ., coticur.
Order and decree appealed from reversed, on the law and facts, with costs payable out of the estate, and the matter remitted to the Surrogate’s Court below for an order directing the respondent to account as respects all property, indicia of title, records, papers, data, and information in its possession or under its control as executor of Addie E. Close, deceased, pertaining to any and all property whereof her husband George F. Close died seized, and to her acts and conduct with reference thereto or connected therewith.