19 N.Y.S. 637 | N.Y. Sup. Ct. | 1892
This is an appeal by the defendant from an order of the surrogate of Albany county, requiring them as executors of Mary Watson, deceased, to account for the property that came into her hands as executrix of Isaac H. Watson, deceased. Some time in the year 1871, Isaac H. Watson, then a resident of Albany county, died, leaving a last will and testament, which was admitted to probate by the .surrogate of Albany county on the 6th
1 think the decree of the surrogate should be affirmed. The right to compel the executor of an executor to account upon the application of the successor of the original executor is provided for by section 2606 of the Code of Civil Procedure. The right to demand an accounting of the defendants did not accrue until their appointment. The property that is being sought, and for which they are asked to account, was not to be distributed until the death of their testator, Mary Watson. Until that time the legatees had no right to demand the same, and the statute would not run against them. They could not sue for their legacies, and could not have an accounting. In re Hodgman, (Sup.) 10 N. Y. Supp. 491. The right to a distribution and to a final accounting of the estate of Isaac H. Watson could not arise until the death of Mary Watson. The defendants have no right to the remainder of that estate in the possession of their testatrix at the time of her death. If, instead of dying ¿September 15, 1889, Mary Watson had so conducted herself that the letters granted to her had been revoked on that day, she could have been made to account for the property in her hands as executrix, and turn the same over to her successor. The defendants occupy her position, and must account in the same manner. In re Clark, 119 N. Y. 427, 23 N. E. Rep. 1052; In re Wiley, 119 N. Y. 642, 23 N. E. Rep. 1054. The decree of the surrogate should be affirmed, with costs and'printing disbursements to be paid by the defendants personally. All concur.