85 N.Y.S. 663 | N.Y. App. Div. | 1904
Lead Opinion
The respondent, Michael Stanley, presented to the Surrogate’s Court a petition alleging that he was the assignee of a specific legacy of a diamond stud bequeathed to Francis J. Egan by the last will and testament of Patrick Henry Egan, deceased, which was admitted to probate by the surrogate of the county of Hew York on the 21st day of September, 1893 ; that letters testamentary on the estate of the said deceased were issued to Addie Egan and the said Francis J. Egan on the 13th day of September, 1893; that the letters issued to the said Francis J. Egan were revoked by a decree of the surrogate on April 2, 1894; that the said executrix has not rendered any account of her proceedings as such, and that the diamond stud is still in her possession and has never been delivered to said Francis J. 'Egan. Wherefore, the petitioner asks that the accounts of the executrix may be judicially settled and that she may be required to render and settle her accounts as such executrix.- Upon this petition a citation was issued requiring the executrix to appear and show cause why the prayer of the petition should not be granted. The executrix filed an answer to such petition, denying that Francis J. Egan, or the petitioner, was entitled to the said diamond stud, and alleging that after letters were issued to said executrix and said Francis J. Egan as executor, the said Francis J. Egan surreptitiously withdrew from the bank the money that was deposited to the credit of the decedent,- to wit, the sum of $1,219.30, the greater part of which he converted to his own use, which was one of the grounds of
The right to compel an accounting by the personal representatives of a decedent is regulated by sections 2726 and 2727 of the Code of Civil Procedure. Under section 2726 the surrogate is authorized to compel a judicial settlement of the accounts of the executor; and section 2727 describes the persons who are authorized to apply for a decree compelling an executor to account. That section provides that “ a petition praying for the judicial settlement of an account and that the executor and
It is clear that the petitioner does not come within "the provisions of this section. He is neither a creditor nor a person interested in the estate or fund; nor is he a surety on the official bond of the
It follows that the order appealed from must be reversed, with, ten dollars costs and disbursements, and the proceeding dismissed, ■ with costs.
Van Brunt, P. J., McLaughlin and -Hatch, JJ., concurred; O’Brien, J., dissented.
Sic.
Dissenting Opinion
I think it illogical to reverse this order when the surrogate on his own motion has the right to direct an accounting. (Code Civ. Proc. § 2726.)
Order reversed, with ten dollars costs and disbursements, and proceeding dismissed, with costs.