74 N.Y.S. 148 | N.Y. App. Div. | 1902
On the 30th of March, 1880, Richard E. Mount died, leaving a will, which on the fifth of May following was admitted to probate by the surrogate of the county of New York, and letters testamentary issued to one of the executors therein named, Henry R. Mount, who was the husband of the defendant in this action. One of the provisions of the will was as follows: “ I direct my executors to set apart from my estate the sum of Five thousand dollars, and invest the same in good security and pay the net interest or income therefrom, from time to time, unto my nephew Richard H., son of my deceased brother Joseph for and during the period of his natural life, and upon his decease to pay and distribute the said principal sum of Five thousand dollars to and among his lawful children in ecpial shares.”
The executor Henry R. Mount died in July, 1899, and at the time of his death he had not rendered an account of his proceedings as executor of his uncle’s estate. He left a will which, on the nineteenth of September following his death, was admitted to probate by the Probate Court in the State of New Jersey, and letters testamentary were issued to the sole executrix therein named, the defendant in this action, and on the twenty-fourth of November following ancillary letters were issued to her by the surrogate of Kings
At the beginning of the trial the defendant moved to dismiss the complaint, substantially upon the ground that it did not state facts sufficient to constitute a cause of action, especially in that it was not alleged that Henry B. Mount, as executor of Bichard E. Mount, ever set apart the fund of $5,000 referred to, or that he ever assented to act as trustee, or ■ that he had, prior to or at the time of his death, such fund in his possession. The motion was denied and an exception taken. The evidence introduced tended to establish the fact that Henry B. Mount, as executor of Bichard E. Mount, during his lifetime, received moneys largely in excess of '$5,000, and that he had not paid over such sum or accounted for it in any way. The plaintiff had a judgment directing the defendant, as the ancillary executrix under the will of Henry B. Mount, deceased, to pay to the plaintiff, as the substituted trustee, etc., under the will of Bichard E. Mount, the sum of $5,000 with, interest' thereon from May 5, 1880, and it is from this judgment, that the present appeal is taken. . -
The Matter of Moehring (154 N. Y. 423) necessitates a reversal of the judgment appealed from. It was there held that the power conferred upon the Surrogate’s Court (and the Supreme Court, in this respect, has no greater power) by section 2606 of the Code of Civil Procedure, in connection with section 2603, to compel an . executor of a deceased executor to account for unadministered money or property of the first estate in his hands, and to pay and deliver the same to the Surrogate’s Court, or to his successor in office, or to such other person as is authorized by law to receive the same, did not require the surrogate to direct payment or delivery to a legatee under the will of the first testator; that under section 2606 an executor of a deceased executor can be required to deliver
It follows, therefore, that the- judgment appealed from must be reversed and a new trial ordered, with costs'to the appellant to abide ihe event.
Yan Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., •concurred. . '
Judgment reversed, new trial ordered, costs to appellant’ to abide . event.