98 N.Y.S. 42 | N.Y. App. Div. | 1906
It appeared, that one James Hernon died, leaving a last will and testament which was admitted to probate Eebruary 19, 1895, appointing one Patrick Walton executor, and-letters testamentary Were. - issued to him? lie taking possession, of the estate, and that Pat
Upon this petition the surrogate granted a decree'requiring Anna T. Walton, as executrix of Patrick Walton, deceased, to render and judicially settle the accounts of Patrick Walton as executor of James Hernon, and also to settle her own account as executrix of the will of Patrick Walton, deceased, in relation to the estate of James Hernon, deceased. In pursuance of this decree Anna •T. Walton filed an account from which it appears that personal property aggregating $13,607.29 came into the possession of Patrick Walton, as executor of James Hernon, and that of that amount there were judgments recovered by James Hernon, but which were unpaid and uncollectible, aggregating $4,423.36; that the said Patrick Walton paid funeral expenses and debts of the decedent aggregating $6,440.59, and that there had been paid to legatees of the deceased the sum of $1,541.65. It was further stated that Patrick Walton, the deceased executor, left no estate either real or personal, and that Anna T. Walton, as his executrix, had never received any property from hiuij that at the time of the death of said Patrick Walton there was in banks to the credit of said. James Hernon the sum of $665.97, and that this amount had been received by Anna T. Walton as administratrix with the will annexed, and was the only amount that the executor of Patrick Walton received of the estate of James Hernon.
Objections were filed to this account, whereupon the surrogate
It would seem that there was no justification for charging these amounts of uncollected debts and judgments against the estate of Patrick Walton, deceased. - He never received them, either as executor or otherwise, and on the appointment of the administrator with the will annexed of James Hernon, deceased, these uncol
Exceptions were filed to this report and it was modified by the surrogate by deducting $181.09 from the amount, which would leave the amount-for which the estate of Patrick Walton is chargeable at $7,314.13. The surrogate in his opinion states that “ it does not appear that any of the assets of James Hernon have come into the possession of Anna T. Walton as executrix of the will of Patrick Walton, the deceased executor of James Hernon;” that “the legal representative of the estate of James Hernon is Anna T. Walton, as administratrix of his estate with the will annexed;” that “ the decree must, therefore, require her as the executrix of the will of Patrick Walton to pay the amount adjudged to herself as such administratrix, &c., of James Hernon;” and that “no distribution can be had of any amount thus recovered until Mrs. Walton shall account as administratrix, &c,, of James Hernon.” The surrogate further directed that the costs of the proceeding, other than the disbursements for the stenographer, are to be charged against Anna T. Walton personally, and a decree wás' entered in accordance with this conclusion, and from that decree Anna T. Walton, as executrix and individually, appeals.
The jurisdiction of the surrogate in this proceeding is based upon section 2606 of the Code of Civil Procedure. That section provides that “ Where an executor * * * dies, the Surrogate’s Court has the same jurisdiction upon the petition of his successor or of a surviving executor, administrator or guardian, or of a creditor of person interested in the estate * * * • to compel the executor or administrator of the decedent to account, which it would have against the decedent if his letters have
It seems to- me that on an accounting under this section the surro- ■ gate Can determine the condition of the account as between the decedent- and the estate of his deceased executor!, and as this adjudication thus settling the accounts is valid the decree of tlie -surrogate should be modified by fixing the amount at $7,314.13 as before indicated. • .
The surrogate has also jurisdiction to compel the executor of the deceased executor to deliver over any of the • trust property which has come to his possession or is under his control, but he can only require the executor of the deceased executor to pay over to his successors money or property which has come into his possession or under his control.. As there was no allegation in the petition that any m'oney. had come into the possession .of Anna T. Walton, as executrix of Patrick Walton-that belonged to the estate of- James Hernon, and as there was no finding that there was any such property, there could be no decree directing the appellant as executrix, of the estate of Patrick Walton to pay to herself as administratrix with the will annexed of Patrick Walton any money, or to deliver any property. This portion of the decree, therefore, which directs Anna T. Walton, as executrix of Patrick Walton, to pay over or deliver. any property to herself as administratrix of the estate of James piernón should be stricken out.
I think, therefore, the judgment should be modified by striking out the provision making these costs payable by Anna T. Walton personally and by providing that they should be payable by the estate of Patrick Walton.
As this disposed of all the questions presented on this appeal that require discussion, the decree is modified as before indicated, and as modified affirmed, without costs of this appeal.
O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.
Decree'modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.
Sie.