107 Misc. 71 | N.Y. Sur. Ct. | 1919
This is a motion for reargument of an application made by the co-executor of a deceased executor to compel the executrix of the latter to file an account of her testator’s administration of the estate of William Richard Denham, deceased.
The law on this question does not seem to be well settled. In the earlier cases it- was held that the executor of a deceased executor could be compelled to account only for the property received by him from his deceased executor. Maze v. Brown, 2 Dem. 217; Bunnell v. Ranney, Id. 327. These decisions were based upon the surrogate’s interpretation of the language of section 2606 of the Code, In 1884, however, the legislature amended that section, and when the question subsequently arose it was held that the effect of the amendment was to give the surrogate jurisdiction to compel the executor of a deceased executor to account in the same manner and to the same extent as if such deceased executor had been
In 1909 section 121 of the Decedent Estate Law was added, and this section provides that: “An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof, as such executor.” In Matter of Hayden, 204 N. Y. 313, it was held that while an executor of a deceased executor may account, he cannot administer upon the estate of the original decedent, and in Matter of Duncan, 181 App. Div. 91, it was said that the executor of a deceased executor was merely the custodian of the property of the estate which has come into his possession, and that with respect thereto he possesses none of the executorial powers and functions which appertained to the deceased executor, and cannot collect or distribute the estate.
Under old section 2606 it was provided that upon an accounting by an executor of a deceased executor a decree against the deceased executor would have the same effect, with respect to the liability of sureties, as if an execution upon the property of the decedent had been returned unsatisfied during his lifetime. This might be considered a sufficient justification for requiring that an executor of a deceased
It would seem to me, therefore, that the better practice would be to have an executor of a deceased executor account for all of the property of the estate that came into Ms possession, and if the administrator c. t. a. of the original decedent was dissatisfied with such an account, he could then file a claim against the estate of the deceased executor and prove that he received more property than that accounted for by his executor. The entire question of his administration of the estate could then be investigated and passed upon, and a decree entered in such a proceed
"Whether it was the intention of the legislature when making the revision of 1914 and eliminating certain parts of old section 2606, that the accounting of an executor of a deceased executor should be limited to property which came into his possession, is not clear from a reading of the new section, 2725. It may be that the legislature in providing that the surrogate may upon such an occasion direct a distribution among the parties entitled thereto intended to repeal by implication that part of section 121 of the Decedent Estate Law which provides that an executor of a deceased executor does not take charge or control of " the property which belonged to the original decedent. In any event, since the amendment effected in 1914, I can see no useful purpose to be served or object to be attained by directing the executor of a deceased executor to account for all the property which came into the hands of his testator. In view, however, of the fact that there is a decision of an appellate court (Matter of Fithian, supra) to the effect that the executor of a deceased executor may be compelled to account for the acts of his testator, and that this decision does not appear to have been expressly overruled by the recent decisions of the appellate courts, I will grant the application to extend the effect of the decision heretofore rendered so as to provide that Edith C. Eckerson, as executrix of John C. Eckerson, deceased, file an account showing the acts of her testator in connection with his administration of the estate of William E. Denham as well as the property of that estate which came into her possession.
Decreed accordingly.
For opinion op reargument see 174 N. Y. Supp. 883,—[Repr.