64 N.Y.S. 660 | N.Y. App. Div. | 1900
William Steencken was temporary administrator of the estate of Christian Koch, and Steencken and Herman Bolte were the executors of Koch after the probate of his will. In December, 1895, Steencken filed his accounts as temporary administrator, and at the same time he and Bolte filed their accounts as executors of .Koch’s estate. Objections were filed to both accounts. The matter was referred to a referee and a hearing was had. The referee filed his report in the month of September, 1896. Ho action seems to have been taken upon it until the month of October, 1899, when the surrogate, having had the matter brought before
So far as it concerns the accounting by Steencken- as; temporary administrator there can be no .doubt that the proceeding . abated upon his death. (Matter of Schlesinger, 36 App. Div. 77.) So,, also, the right .of the surrogate to enter any personal decree against Steencken in respect of. his accounts as executor abated by his death; .but it does not follow'from that fact that the surrogate-was correct in. refusing ta enter any decree whatever - in the matter. The two-, executors-took the estate as joint-tenants. (1 R. S. 727, § 44; Real Prop. Law [Laws of 1896, chap. 547], § 56.) When- one of them died all his interest in the estate vested in the surviving executor (Matter of Kreischer, 30 App. Div. 313, 315), and it was his duty to proceed to complete the distribution of the estate. . (Code Civ. Proc. § 2692.). After Steencken’s death, therefore, all- the property- which had been in the hands of the two executors of Koch came by act of the law into, the hands and possession of Bolte,'-and-he, as surviving executor, was bound to go on and complete the distribution of . the estate.' Proceedings for an accounting, so far as he was concerned, still existed,, and although the surrogate by the- death of, Steencken" lost any power to máké a decree which would charge Steencken .personally in respect of "the property of the estate which wras .in his hands, if - there was. any such," yét no reason is apparent why he should lose the power to proceed "against" Bolte and to. dispose of all the property which was- in his hands, or, having .been in the: pos-, session of both of the executors; vested in the possession of Bolte at the death of his có-éxecutor.
' In actions against partners and trustees in respect of thé joint property where One of. them dies, all the property vests in the other ás survivor, and- it-is: not necessary to discontinue"the action or to substitute the personal representatives .of the deceased partner-or
For this reason the surrogate erred in refusing to enter any decree, and-the' order must be reversed, with costs, and the matter remitted t'o the surrogate in order that he may proceed upon the lines here indicated.
Van Brunt, P. J., Patterson; Ingraham and Hatch, JJ., concurred.
Order reversed, with costs, and matter remitted to the surrogate.