Hood v. Hood

1 Dem. Sur. 392

• Court: New York Surrogate's Court
• Decided: July 15, 1883
• Status: Published

Opinion

The Surrogate.

The petition prays for four different kinds of relief: 1st, that the decree of 1869 be vacated and set aside; 2nd, that Frederick Hood’s letters, as executor, be revoked; 3d, that he be ordered to make discovery; and, 4th, that he be ordered to account. Each of such remedies should be separately pursued, as each is provided for and regulated by distinct provisions of the Code, and should not be blended. The blending of them causes much confusion. Still, I will entertain jurisdiction as to the revocation of the letters, but that will involve the taking of testimony. Subd. 2 of § 2685 furnishes the ground, and § 2686 points out the mode, while § 2603 declares the effect, and provides for an accounting, and § 2609 furnishes the remedy on the bond.

I think I cannot, as a distinct proceeding, compel him alone to procure a judicial settlement of his account. The executrix should be a party to that. If that remedy is desired, a new petition, prepared solely to that end, should be presented, alleging, among other things, the minority, of the petitioner at the date of the decree of 1869, that he has now become of age, and is a legatee whose legacy was payable on his attaining lawful age, and making Mrs. Hood, the executrix, a party. If he renders his account therein, then proceedings on the bond, if necessary, could be had under § 2607. In such proceeding, he could be examined, and the “ discovery ” sought obtained. If he failed to file his account, then, under subd. 3 of § 2685, his letters could be revoked, and resort had to his bond, under § 2608.

This court has power, under subd. 6 of § 2481, to vacate or set aside a decree, but the petition contains no allegation of any reason for disturbing that of 1869, other than want of service of the citation upon the then minor. If it was just, why should it be vacated?

The case of Hood v. Hood (27 Hun, 579), affirming an order made by this court requiring F. Hood to render an account, was reversed by the Court of Appeals (90 N. Y., 512), not because the Surrogate had not jurisdiction to require an accounting, but because no new facts were alleged as having arisen since the accounting of 1869; and the court proceeds to say, “if they are liable to account as testamentary trustees, the statute provides the method of procedure in that case, but this proceeding was not' of that character.” It had, doubtless, overlooked the fact that the same court (in 85 N. Y., 561) held that the executors were not in fact trustees, but were liable to account throughout as executors, and that the Surrogate had jurisdiction to take'such account.

Now, a “new fact” has arisen since the accounting of 1869, The petitioner, who, on coming of age, was entitled to payment of his legacy, has become of age. This is a “ new fact ” of great importance, entitling the petitioner not only to an accounting, but to any other remedy calculated to coerce payment of the legacy wrongfully withheld from him.

The matter will be retained, in order to enable counsel for the petitioner to select which of the two modes of proceeding indicated he will pursue.

Ordered accordingly.