42 Misc. 161 | N.Y. Sur. Ct. | 1903
A proceeding was duly commenced on a petition of one of the next of kin of the decedent, against the administrator to compel an accounting. On the return day of the citation the attorneys for the petitioner and for the administrator both appeared; no objection to the granting of the relief was suggested, and, thereupon, an order was made by the surrogate that the administrator file his accounts, as such, within two weeks thereafter. This order was obeyed, and an account was filed in which the administrator admitted the receipt of assets amounting to $288.19, and alleged that he had made disbursements amounting to $843.11... Objections were filed by the next of kin in which it was charged, among other things, that the administrator was, at the time of the death of the decedent, indebted to her in amounts exceeding $10,000, for moneys received by him from her in a fiduciary capacity. An order was thereafter, on July 30, 1903, made by the surrogate by which it was referred to a referee “ to inquire into the necessary jurisdictional facts, to examine said account and objections and to hear and determine all questions arising upon the settlement of said account which the surrogate has power to determine.''
On the first hearing before the referee the administrator was sworn and was examined by counsel for the objectant as to certain transactions had by him with the decedent, but such examination was not concluded when an adjournment was had.
On the adjourned day another counsel appeared for the accountant, who offered an answer “ to the petition ” of the next of kin on which the proceeding was instituted, and also “ to her objections to the account,” and this answer was received and filed over tbe objection of the next of kin. The defense set up in this answer was, in substance, that the proceeding and all remedies
The report of the referee is, in brief, that the Statute of Limitations is a bar to the proceeding and to the objections of the next of Mn; that the objections to the account should be dismissed, and that the account filed by the administrator should be stated as correct by an appropriate decree. Exceptions to all of these conclusions were filed by the next of Mn.
It was not referred to the referee to determine whether the surrogate acted improvidemtly or improperly in maMng the order directing the filing of the account. In order to procure the dismissal of the proceeding or defeat the application for the filing of the account, the administrator should have answered on the return of the citation, setting up the bar of the statute, and the issue thus raised would then have been dealt with by the court. Failing this, the order to file the account was a proper exercise of the power of the court, and it is not within the province of the referee to reverse it or to iset it aside. If all of the facts disclosed by the answer had been before the court, it is not clear that the order would not have been granted. In Matter of Irvin, 68 App. Div. 158, 162, Laughlin, I., writing for the court, said: “ Upon a proceeding of this nature it is not proper to deny the relief upon the ground that the Statute of Limitar tions has run against the remedy unless all the facts upon wMch
The question as.to whether the administrator was protected by the statute from an obligation to account for and pay over moneys was included within the issues referred to the referee. ISTo provision of law required or permitted the administrator to make any written reply to the objections and, therefore, all proper defenses were permissible to him, including the Statute of Limitations. It was proper for him to point out and insist upon the statute, either orally or in writing, and that at any stage of the proceeding before the close of the evidence. Matter of Chadeagne, 10 Hun, 97. The referee, therefore, acted properly in receiving the answer and treating it as filed.
The duty imposed on the referee was not to .determine whether the proceeding had been duly initiated, but whether, on all of the facts proved before him, the administrator was legally chargeable with any sum of money. The Statute of Limitations was not waived by the administrator by his obedience to the order requiring him to account, and it was entitled to due consideration.
It was competent for the referee to control the order of proof and, if all of the facts establishing the contentions of fact as to the matters charged in the objections were fully proved or fully admitted, he might properly require the objectant to confine his
'One of the questions put to the administrator and excluded by the referee was: “ Did you ever receive any property or money of your mother’s estate not embraced in this account now before the referee ? ” The remedy of. the petitioner to require the administrator to account for money or property received by him did not accrue until that money or property was so received, and it was error to refuse to require the witness to answer this question. Matter of Post’s Estate, 7 N. Y. Supp. 438; Matter of Coman, 47 Hun, 639.
The exceptions to the report of the referee are sustained, ■and the matter is remitted to him for further hearing and report.
Exceptions sustained, and matter remitted for further hearing and report.