77 N.Y.S. 558 | N.Y. App. Div. | 1902
Upon this appeal we are asked to review the action of the surrogate in denying the appellants’ application to open and vacate a decree entered herein on December 5, 1901, settling the accounts of
The respondents urge that the" power of the surrogate to open or vacate a decree is discretionary, and in the absence of an abuse the exercise of such power should not be interfered "with. This, how^ ever, is not the rule applicable in a case such as this, as an examination of subdivision 6 of section 2481 of the Code of Civil Procedure will show. Therein, after providing- that the surrogate has power “ to open, vacate, modify or set aside * * a decree or order of his court * * * for fraud, newly discovered evidence, clerical error or other sufficient cause,” it is said : “ Upon an appeal from a determination of the surrogate made upon an application pursuant to this subdivision the Greneral Term of the Supreme Court has the ' same power as the surrogate, and his determination. must be reviewed as if an original application was made to that term.” These provisions have been recognized and applied in Matter of Hodgman (82 Hun, 419) and Matter of Tilden (98 N. Y. 434). The questions presented upon such a motion, therefore, come before this court in the same manner as they do before the surrogate, and are to be considered as if brought before the Appellate Division in- the-first instance.
A motion "such as this, wherein important and valuable interests - are involved, should, upon a proper and sufficient showing and where the petitioners, have acted promptly, ordinarily be granted, for although the result may be extra labor for the executors and
It is unnecessary for us to determine whether the charges of fraud or clerical error are substantiated, nor do we do so as these, in view of the conclusion at which we have arrived, can be settled on the accounting. There is one objection which we regard as fatal to the decree and which requires that we should set it aside.
This objection is that no vouchers whatever have been filed in this proceeding or in the matter of the estate of the deceased. Ho denial is made of such averment, although in explanation it is said by the respondents: “ The vouchers in this case were very numerous, and it would be difficult to file them with the account without danger of losing the vouchers, and for that reason they were not filed with the account, but such vouchers have at all times been open to inspection to all persons interested in said estate and now are in a large box in the office of * * * the attorney for the executors.” Although it be true, as stated, that thousands of vouchers exist, and they are very bulky and there would be great danger of losing them, the requirement of the statute is peremptory that they should be filed; and the fact that the estate is á large one would seem to be an additional reason why the executors would desire and be expected to file them. The provision of section 2729 of the Code of Civil Procedure is that “ on an accounting by an executor or administrator the accounting party must produce and file a voucher for every payment,” excepting only, first, any proper item not exceeding $20, if it is supported by his own nncontradicted oath, such items in the aggregate not to exceed $500 ; and, secondly, if he proves that he did not take a voucher when he made the payment, or that it has been lost or destroyed, in which case an allowance can be made if competent proof of the payment is presented to the satisfaction of the surrogate. Here neither exception applies, for the disbursements, for which no vouchers were filed, aggregate many thousands of dollars, and, furthermore, it is not denied that vouchers were received and are now, all of them, retained in the possession of the executors.
We think, therefore, that the decree should be vacated and set. aside, and the order appealed from is, accordingly, reversed with costs, and the motion granted.
Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.
Order reversed with costs, and motion granted.