183 A.D. 840 | N.Y. App. Div. | 1918
Frank E. Waters died at the city of New York, intestate, on September 3, 1906. His mother, Elizabeth Ann Waters, was appointed administratrix of his estate on November 24, 1906. He left him surviving as next of kin his mother, four brothers (William H., Martin J., Raymond H. and Howard P.) and three sisters (the respondents Gertrude G. Blake and Genevieve G. Platt [formerly Waters] and also Elizabeth A. [referred to as Bessie] Waters). Deceased had been engaged in business for about five years, in partnership with William H.
Elizabeth Ann Waters, as administratrix, thereupon prepared and caused to be filed her account of proceedings wherein the various amounts appeared as recited in the agreement aforesaid and which varied in no way from the basis upon which the agreement was made and which showed the amounts of balances to be paid to the next of kin complying in all . respects with the agreement. The account was affirmed as of the date of December 22, 1910, and Schedule G thereof set forth the making of the agreement in question which was filed with the account marked “A,” and the distribution of the balance of the estate was stated by the administratrix to be proposed to be made in accordance with such agreement subject to the approval of the surrogate. Waivers of issuance and service of a citation were executed and acknowledged by Elizabeth Ann Waters, Martin J. Waters, William H. Waters, Gertrude-G. Blake, Genevieve G. Waters and Raymond H. Waters, being all the adult next of kin. The waiver of Elizabeth Ann Waters was dated and acknowledged December 28, 1910. The waivers of the other next of kin were executed and acknowledged December 22, 1910. The petition for accounting was affirmed to under date of December 22, 1910, and showed that Howard P. Waters and Elizabeth Ann Waters were still minors over the age of fourteen years, having no general guardian. A citation was issued dated December 22, 1910, and Frank T. Fitzgerald was appointed special guardian of the two minors. He made his report dated January 13, 1911, wherein he stated that he had examined the petition, account, vouchers and other papers on file and made himself fully acquainted with the rights and interests of his wards, and that in his opinion the account was correct and properly stated the interests of his wards, and he recommended that the account as filed be judicially settled and
In her petition Mrs. Blake made no attack whatever upon the good faith of the special guardian of the minors and made no suggestion that he had been imposed upon in any way or induced by fraud to make his report. The petitioner did not venture to allege that she had been induced to sign the waiver of issuance and service of a citation by fraud of any kind nor did she seek to make any attack thereon. Her attack was directed solely against the agreement which she claimed was obtained by fraud and she did not assert or even suggest that the decree of the surrogate settling the account pursuant to the agreement had been procured by any fraud or deceit practiced upon the surrogate nor that any error or mistake, clerical or otherwise, had been committed in its entry. Her very petition disclosed the fact that "she had already begun an action in the Supreme Court, New York county, against the administratrix to set aside the agreement as fraudulent and of no effect and that the administratrix had appeared in said action. The next step in the estate was an order of the Surrogate’s Court dated September 21, 1911, vacating the decree of January 30, 1911, and granting leave to the petitioner to file objections to the account on or before September 29, 1911. Objections were filed to the account, still most general in character, except the one which set forth that the administratrix had failed to present proper vouchers for expenditures amounting to $10,623.87 constituting the expenses of the household, and thereafter and on September 28, 1911, an order of reference was made to Honorable Rastus S. Ransom to examine the account and objections and hear and determine the questions involved. Thereafter, on the application of Elizabeth Ann Waters, individually and as administratrix, an order to show cause was granted on October 11, 1911, requiring the petitioner to show cause why the. order of September 21, 1911, vacating the original decree should not be vacated and set aside and the petitioner’s application be
It appears that the reason for this action of the surrogate was because the motion papers had been marked “ submitted ” on July 25, 1911, and he had no knowledge of any extension of time within which the administratrix, as agreed, might file her answering affidavits. Both parties were surprised at the rendition of the decision of the Surrogate’s Court before the agreed time for' the submission of the matter had expired, and it is claimed by the attorney for the administratrix that the attorney for the contestant agreed to go to the Surrogate’s Court, explain the mistake and submit the answering affidavits, and that the former submitted to the latter substantial drafts of the affidavits proposed to be filed on August tenth. Thereafter nothing appears to have been done until August twenty-fifth, the attorney for the administratrix believing that the matter was held in abeyance until the affidavits could be submitted, but instead thereof notice of the settlement of the order was given, but on the protest of the attorney for the administratrix the order and notice of settlement were withdrawn by the attorney for the contestant on August twenty-fifth, but on September sixth the proposed order was again noticed for settlement and the attorney for the contestant refused to withdraw the same, but on September 12, 1911, the attorneys having met by agreement before the surrogate it was agreed in his presence that the matter be restored to the calendar and the settlement of the order be adjourned. Various transactions took place between the attorneys, not relevant to the main questions here, as the result of which it was agreed that the matter both of the petition to open the decree and the settlement of the order should be adjourned to September 19, 1911, but the attorney for the contestant finally refused to sign any stipulation unless it was without prejudice to the technical rights which he claimed t,o have gained by the action of the surrogate in deciding the motion
The affidavits of the next of kin presented on behalf of the motion are most persuasive as to the absence of any fraud in the making of the agreement and if received by the Surrogate’s Court would seemingly have made the vacating of the decree out of the question. In opposition to the motion were submitted the affidavits of Mr. Curtin, the attorney for the contestant, of Gertrude G. Blake and of Genevieve Waters, who, for the first time, appeared as joining with the original contestant. These affidavits add nothing of any probative force to the original petition of Mrs. Blake. The answering affidavits of Elizabeth Ann Waters, William H, Waters, Raymond H. Waters and Joseph T. Ryan simply strengthen the impression produced by the original affidavits of the baseless character of the mass of generalities indulged in by the contestant and her sister. Yet the surrogate denied the application, disregarding entirely the conceded fact that he had decided the motion before the time to file the answering affidavits to the original application had expired, and thus the administratrix, without being in default, was left by the recitals of the order in the position of having suffered a default and having submitted to the court without any opposing affidavits the application which she was in reality most strenuously opposing.
As all the subsequent orders and decrees are based upon the order of September 21, 1911, whereby the decree settling the accounts of the administratrix and directing the distribution of the estate was vacated and set aside, and as without such order and the consequent disregard of the agreement in question the final decree would have been impossible of rendition, it will be necessary first to determine whether said order was properly made.
At the time that the order in question was made section 2481, subdivision 6, of the Code of Civil Procedure conferred upon the Surrogate’s Court power “ to open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers, conferred by this subdivision, must be exercised only in a like case and in the same manner, as a court of record and of general jurisdiction exercises the same powers.” (Laws of 1880, chap. 178.) But in the case at bar there was no suggestion of any fraud having been perpetrated upon the surrogate, nor of any fraud in the execution of the waivers of the service of citation, nor of any fraud in the conduct of the proceeding to settle the accounts. What fraud was attempted to be alleged had to do solely with the procurement of the agreement between the next of kin. There was no denial that the contestant "had signed the agreement and waiver with full knowledge of their contents and meaning. The surrogate had
But the contestant claims that the order may be upheld as being within the general power of the courts to relieve from stipulations, to promote justice and prevent wrong, and cites various cases, none of which is applicable to the case at bar. This was no mere stipulation made in the course of an action or proceeding. As a matter of fact when it was made no proceeding was" pending though it was undoubtedly entered into with a view to the proceeding about to be brought. But this was a formal agreement, under seal and acknowledged, and while a court may have all the powers claimed, no court has power to set aside and annul an instrument of such solemnity without a hearing or trial regularly conducted. It is one thing for a court to undo a wrong which it has unwittingly helped to perpetrate; it is quite another thing to determine property rights without a proper hearing.
Nor can the order in question be sustained under section 2472-a of the Code of Civil Procedure as.it existed at the time the order was made. That section (as added by Laws of 1910, chap. 576, effective Sept. 1, 1910) provided: “ The Surrogate’s Court has also jurisdiction upon a judicial accounting or a proceeding for the payment of a legacy, to ascertain the title to any legacy or distributive share, to set off a debt against the same and for that purpose ascertain whether the debt exists, to affect the accounting party with a constructive trust, and to exercise all other power, legal or equitable,
Furthermore, the petition itself disclosed a reason why,
These conclusions make unnecessary any consideration of the errors committed in fixing a value on the alleged good will
The orders and decree appealed from will be reversed, with costs to appellants payable out of the estate.
Clarke, P. J., Latjghlin, Shearn and Merrell, JJ., concurred.
Decree and orders reversed, with costs to appellants separately payable out of the estate.