11 N.Y.S. 193 | N.Y. Sur. Ct. | 1890
Lutgarde Blow died, leaving a last will and testament, which was duly admitted to probate by the Surrogate of Rensselaer county, about the 1st day of June, 1877. Her will is as follows: “First. After the payment of all my just debts and funeral expenses, I do give and bequeath unto all my children the property of which I may die seized, to be divided equally between them when the youngest of my children shall reach the age of twenty-one years, except there shall be deducted from the shares of Philomene and Vitaline Chevalier each the sum of $1,000 on account of their father providing by bequest for them in his will. Second. It is my desire that my executor shall be general guardian for my children, and that the rents and profits received from my pro
It is immaterial that a successor to Louis P. Rousseau, as guardian, was not appointed. A failure to fill the office would not authorize the administratrix with the will annexed to collect the rents or to act as such. The offices of administratrix and guardian are entirely distinct, the incumbents having entirely different duties and liabilities. The executor having no right to collect the rents from the real estate belonging to the said minor children under the will, his successor, the administratrix, with the will annexed, could have no such authority, even if it be assumed, as is claimed by the next of kin and devisee, that the administratrix with the will annexed succeeds to the powers and duties of the executor as to the management of the real property. Rev. St. (8th ed.), 2551; Mott v. Ackerman, 92 N. Y. 552.
I do not pass upon the question, which was much discussed in the briefs of counsel, as to what authority devolves upon the administratrix with the will an
The next question, and substantially the sole one in this case, is whether the Surrogate’s court has the jurisdiction or authority to compel the administratrix with tlje will annexed to account and to pay over to the persons entitled thereto money which she has concededly in her character as such collected from the real estate left by the testatrix to her minor children. Upon the argument of the matter I was inclined to hold that the Surrogate’s court could compel such accounting, and that the administratrix with the will annexed, having in her character as such collected the rents during a long period of time without question by persons interested, was estopped, especially after she had filed an account in this court charging herself with the same, from denying her authority to receive the same as administratrix, and from questioning the authority of the court to compel her to account and to pay over the same to the parties entitled thereto. Prior to the Revised Statutes, a person might assume the office of executor or administrator by his own intrusion or interference. Such person was styled an executor or administrator “de son tort,” (Toll. Ex’rs, 37; Dayton Sur., 210,) and was liable to account as such. Campbell v. Tousey, 7 Cow. 64; Van Horne v. Fonda, 5 Johns. Ch. 388. But it seems that they could be held liable as such only in courts of equity, and not at law. Vermilya v. Beatty, 6 Barb. 429. And it has been expressly held that the Surrogate could not call an executor or administrator de son tort to account. Wever v. Marvin, 14 Barb.
The Surrogate’s court, however, is not a court of general equity jurisdiction. The general powers of a court of equity do not pertain to a Surrogate’s court. Stilwell v. Carpenter, 59 N. Y. 425. It is expressly provided that the jurisdiction of this court “ must be exercised in the cases and in the manner prescribed by statute.” Code Civil Proc., § 2472. The jurisdiction of the Surrogate to make the order prayed for, if it exists at all, is under his authority “ to control the conduct and settle the accounts of executors and administrators.” Section 2472, which is a substantial re-enactment of 2 Rev. St., p. 220, § 1. Subdivision 3
Nor can the administratrix be held responsible in this court by reason of the doctrine of equitable estoppel. In the case last cited, the administrator had obtained possession of the proceeds of certain real estate of which decedent died seized, after her death, and, assuming the money to be personal property, included the amount in his inventory which he filed in the Surrogate’s court. It was held upon the accounting by the Surrogate that the money being proceeds of the sale of real estate the Surrogate’s court had no jurisdiction to award its distribution or to control the conduct of the administrator in respect thereto. It was further held in that case, that the administrator was not estopped by reason of the fact that he was charged with the amount received in his inventory, and had paid out a portion thereof in satisfaction of the debts of decedent, since the administrator could not, by any act of his own, change the property which the law had impressed with “ real uses ” into personal property. The rule is the same whether the property
. As to the remaining question raised by surcharging-the account" of the personal estate filed by the administratrix and the absence of any account as to the proceeds of the sale of ■ the real estate mortgaged under the direction of the Surrogate’s court for the payment of debts, it is ordered that the hearing proceed upon the issues framed.
In conclusion I ought to add that I have reached the foregoing conclusion much against my inclination, for it seemed to me that the personal estate and the rents of the real estate having been so long treated as one, and so thoroughly blended, and the same parties being both heirs at law and next of kin, and all of them before the court, it would be a saving of time and expense, and substantial justice would be best promoted, by having the whole matter at issue decided at one time and by the same court. But I am