160 Misc. 257 | N.Y. Sur. Ct. | 1936
This is another of those applications to set aside decrees on accounting which have been made so frequently in this court by disappointed beneficiaries.
The'decree sought to be opened here settled the account of the executors and was dated the 16th day of October, 1934. The application is denied. The petitioner, Johanna Loesch, is ,one of the remaindermen of a trust created under the will of the testator.
In an accounting proceeding instituted by the executors op. the 11th day of April, 1927, she was duly served with citation by publication and by mail addressed to her at her residence in Alkmaar, Holland. By her own admission, she received the citation, but failed to appear and file objections to the account within the statutory eight days from the date of the return of the citation. She alleges in her petition in this proceeding “ that she did not understand the purpose of the citation received by her by mail, or that it gave her any 'right to contest, or that it required her to do anything and believed that it was a mere legal formality, some intermediate step in the administration of her uncle’s estate, as she understood that the .estate was not to be settled until the death of her aunt, Frances Volkenberg, who she knew to be still living.” It is upon these flimsy excuses that she seeks to be relieved for her default in the accounting proceeding, a default which occurred approximately nine years ago, and asks the court to reopen a decree which judicially settled the accounts of the executors, upon the sanctity and binding force of which the executors were warranted in relying. The
Nor does it appear that if the decree were reopened the petitioner in this proceeding would be successful in her present contentions. She states in her petition that she was without information as to the acts and conduct of the executors in the administration of the estate; that she has just been advised by her brother, William F. Heine, who was a coexecutor of the estate, that a claim for dower in certain real property left by the testator had been made by his widow and had been improperly allowed and paid to her, and further that there were found among the contents of the, testator’s safe deposit box in the vault of the Commonwealth Bank in the city of New York, certain Erie railroad bonds of .the value of $2,000 for which the executors did not account, but which were turned over to the widow upon her claim of ownership to them. The petitioner" further alleges that although her brother, William F. Heine, was an executor and trustee, he was never in actual possession of any
Moreover, the determination as to whether the provisions in the will for the benefit of the widow were in lieu of, or in addition to dower, involved a pure question of law, which was. reviewable only by the appellate courts upon an appeal properly taken from the decree of the surrogate; ■ (Matter of Putnam, 220 App. Div. 34, at p. 37.) No appeal was taken from that decree and the time to do so has long since expired. As to the two Erie railroad bonds, it clearly appears that in the transfer tax proceeding in this estate, the claim of the widow to such bonds was asserted, by her and her ownership therein supported by the affidavit of Gustave J. Dohrenwend, one of the executors and trustees of the estate, who has since died. Whether the claim of the widow was in the nature of a personal claim against the estate, or whether it was the assertion of the right to property ostensibly in the possession of the decedent but actually belonging to the widow, ample opportunity was afforded to the petitioner and to her brother, William F. Heine, to investigate the widow’s right to such bonds and to complain of the retention by her of them in the accounting proceeding. Not the slightest indication of the suppression of facts, or fraud, or collusion, or unwarranted imposition in this estate .Fas been shown. The petitioner cannot stand idly by for so many years and, after the
Submit order on notice denying the application accordingly.
