| N.Y. App. Div. | Apr 4, 1955
In a proceeding to settle the account of respondent, as executor and trustee, which was given permission to resign, the widow and son of deceased and certain legatees appeal from so much of an order as dismisses some of their objections to respondent’s account. Order of the Surrogate’s Court, Rockland County, insofar as appealed from, modified by striking from the first and second ordering paragraphs any reference to objections “ First ”, “ Second ”, “ Third ”, “ Fourth ”, “ Fifth ”, “ Sixth ”, “ Seventh ”, “ Eighth ”, “ Ninth ”, “ Tenth ”, and “ Fifteenth ”; and, as so modified, order affirmed, without costs. The petition to settle the account requested determination of all issues set forth in the account and raised in the Supreme Court action as to the ownership of assets in the name of the decedent or jointly owned with him. The order appealed from denied the motion insofar as it sought to dismiss some objections. It cannot be said now as matter of law that it will not be necessary in this proceeding, when the issues raised by such objections are passed upon, to determine the legal or equitable ownership of the assets and whether moneys have been set aside for the widow under section 200 of the Surrogate's Court Act. Nor can it be said as matter of law that on its face any objection which is hereby reinstated shows that it will not be necessary to make such determination. Therefore, while the Surrogate has power to withhold hearing or disposing of the objections to the account until the issues are settled in the pending Supreme Court action between the widow and the executor and trustee and others, the objections reinstated should not have been dismissed. Nolan, P. J., Wenzel, MacCrate and Ughetta, JJ., concur; Murphy, J., dissents and votes to affirm without modification.