89 N.Y.S. 939 | N.Y. App. Div. | 1904
At the threshold of this discussion it is necessary to determine the extent of the surrogate’s jurisdiction. Assuming to account as executor of Mary Emily Hull under her will this executor has been compelled to account for the moneys which she received as administratrix of the estate of Harry Maxwell Bushby. The objection first raised upon this appeal is that any claim this contestant had against the estate of Mary Emily Hull by reason of moneys received by her as such administratrix is a claim that should be adjusted by action brought in another court, the determination of which is beyond the jurisdiction of the surrogate. Ordinarily the surrogate has not the power to determine a claim made against an estate except upon written stipulation and consent of all parties. Under section 2606 of the Code of Civil Procedure it is provided that where an administrator dies a person interested in the estate may require the executor of the administrator to account for the acts of the deceased as administrator. James Hull, therefore, was liable, under this section, to account not only for his own acts as executor of the estate of Mary Emily Hull under the will, but for her acts as administratrix of the estate of Harry Maxwell Bushby, and to the extent of the interest of this contestant in the estate of Harry Maxwell Bushby this executor was bound to account to the contestant, provided moneys came into his hands from the estate of Mary Emily Hull sufficient to satisfy said claim. In accounting under the will of Mary Emily Hull he cannot ignore her liability for the moneys received as administratrix of her first husband. All the parties were before the court for the determination of the extent of that liability, and the surrogate clearly had jurisdiction under section 2606 of the Oode of Civil Procedure, to determine the questions raised thereupon. (See Matter of Hicks, 170 N. Y. 195 ; Fowler v. Hebbard, 40 App. Div. 108.)
As the executor was thus required to account for the acts of his decedent as administratrix of Harry Maxwell Bushby, we are at a loss to understand why the referee declined to allow him to show payments made by the deceased to the contestant. It is claimed here that the questions were not in proper form; that a book of the decedent showing these payments was attempted to be introduced in evidence without proper proof thereof. The answer to this claim
This conclusion renders it unnecessary to discuss the other questions raised by the appeal. Inasmuch, however, as they must again arise, it is perhaps proper that we express an opinion as to some of them. It is difficult to sustain the granting or the allowance of fifty dollars to the executor upon the transfer of the real estate to the contestant. This would seem to be unauthorized under Phœnix v. Livingston (101 N. Y. 451); Matter of McGlynn (41 Misc. Rep. 156); Roosevelt v. Van Alen (31 App. Div. 1, 3, 5). The credit to the estate of £300 paid for illegal debts is not warranted in law. While it is hardly conceivable that a natural child should object to a credit to her mother for the payment of her father’s debts of honor, this contestant has the legal right so to object, and if she chooses to assume that position the court must sustain her objection.
The counsel have argued at length upon the construction of the will of Mary Emily Hull and the effect of the release to herself by the contestant of her right to the income and proceeds of the residue
It is further contended that under the will of Tobias Frere, upon the death of Eliza Rebecca Bushby, in case she shall be married at the time of her decease, the trustees are to hold the property in trust for the persons who,, at the time of her decease, would, under the statutes for the distribution of the estate of persons dying intestate, be entitled to the same. It is, therefore, claimed by the executor that inasmuch as Eliza Rebecca Bushby died leaving her husband, one Bauldrey, her surviving, the trust still continues under the will of Tobias Frere. We do not so read the will. In case Eliza Rebecca Bushby shall leave children who shall attain the age of twenty-one years, or dying under that age, shall leave issue, the direction of the will seems to be that the property shall go to such child or its issue if the child be dead. The provision as to the death of Eliza Rebecca Bushby while married seems to be upon condition that there shall be no child or grandchild living. The practical construction put upon this will has given the property to Mary
The surrogate’s decree should be reversed and a new trial granted, with costs of appeal to executor from the fund.
All concurred ; Parker, P. J., and Houghton, J., in result.
Decree reversed and new trial granted, with costs of appeal to executor payable out of the fund.