Woodruff v. Woodruff

17 Abb. Pr. 165 | N.Y. Sup. Ct. | 1863

Clerke, J.

Inasmuch as the appellant was the sole acting executor, and as the respondent was a legatee under the will, she had the right, in that capacity, to cite him to render an account as such acting executor.

The order of the surrogate of the 23d of Jan., 1863, was not made for the purpose of liquidating the affairs of the copartnership, but for the purpose of ascertaining what amount the appellant had collected as executor, from the assets of the firm, for the benefit of the estate of the testator. Surely, if he was not a copartner of the testator in that firm, he would be liable to account for all sums of money which he had realized from the assets. Can the fact that he was a copartner, exempt him from such liability ? This species of accounting before the surrogate, in no respect encroaches upon the j urisdiction which alone belongs to this court as a court of equity,—should its interposition be necessary in adjusting the rights of the respective members of the concern, as their representatives,—in protecting and disposing of the property for the, benefit of all to whom it may belong, or who may have demands upon it,'—in compelling the surviving partner to account for the stock which has come into his possession, or, if he has carried on the business since the death of the deceased partner, to account for the profits made by him; and finally, in winding up the affairs of the concern. This the surrogate has not attempted to do by the order appealed from. As to the objection, that the executor cannot be compelled to account in the way required by this order, because it is not a final accounting, the 5Tth section of the act relating to the duties of executors and administrators, &c. (2 Rev. Stat., 92, § 52; same stat., 3 Rev. Stat., 5 ed., 178), authorizes the surrogate, at any time after the expiration of eighteen months from the time of his appointment, to order an executor or administrator to render an account of his proceedings, upon the application of a creditor, a legatee, a next of kin, or without such application. Upon being thus required to render an account, the executor or administrator may, if he desires it, have the same finally ■settled. But, this in no respect affects the right of any party interested, or of the surrogate on his own motion, to require him to render an account, which may or may not, according to the course of events, prove to be final.

The order of the surrogate should be affirmed with costs.

Sutherland, P. J., concurred. '

Barnard, J., expressed no opinion.