In re the Estate Croker

144 Misc. 492 | N.Y. Sur. Ct. | 1931

Foley, S.

The motion to dismiss the petition is granted, with costs. The decedent, Frank Croker, died in 1905. He was the son of Richard Croker, Sr. It was claimed that there was a complete accounting between the decedent’s administrator, Richard Croker, Jr., and his father, Richard Croker, Sr. Mrs. Bula Croker, the widow of Richard Croker, Sr., now seeks to compel an accounting. She appears in her individual capacity as a legatee under her husband’s, Richard Croker, Sr.’s, will or wills. She is not a person interested in the estate within the meaning of section 259 of the Surrogate’s Court Act. She is merely a legatee of a distributee. The right to compel an accounting vests in the executor or administrator or other representative of the distributee’s estate. This right is not available to a legatee, distributee or creditor of a next of kin. (Bushe v. Wright, 118 App. Div. 320; affd., 195 N. Y. 509; Hart v. Goadby, 138 App. Div. 160; Buck v. Kelly, 108 Misc. 408; Matter of Meehan, 104 id. 219; Matter of Redfield, 71 Hun, 344; Duncan v. Guest, 5 Redf. Surr. 440.) It is contended by counsel for the respondent that Bula Croker has deliberately avoided qualifying in New York as ancillary executrix of the estate of Richard Croker, Sr., a status which would have entitled her to institute a compulsory proceeding. While that contention may be correct, the question here is one of status and not of motives. .The respondent should not be burdened with the expense of an accounting. The law properly confines the right to a person interested, in order to prevent an unnecessary harassment of an executor or administrator or trustee by a person without standing in the court. (Matter of Fox, 166 App. Div. 718.) The corporate temporary administrator of Richard Croker, Sr., has not been made a party to this proceeding. Its rights to enforce an accounting must be tested in a proper proceeding formally and regularly brought on.

Submit order on notice accordingly.