In re Jones' Estate

65 N.Y.S. 865

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 17, 1900
• Status: Published

Opinion

O’BRIEN, J.

It is not disputed that the account of the temporary administrator was filed on October 15, 1890, and that it was not until September 6,1899 (nearly nine years after such account was filed), that the appellant presented her petition praying that a citation issue to the temporary administrator to attend a judicial settlement of his account. To obtain, however, the object sought upon such settlement, namely, to charge the administrator with devastavit in connection with the collection of the rents of certain real estate, the appellant moved for leave to file and serve objections similar to those which had been filed upon the accounting by the executor, which leave the surrogate refused because of the time that had elapsed since the right to obtain such relief had accrued.

It is undisputed that the executor in 1895 included in his account that of this temporary administrator, and that objections similar to those now sought to be interposed here were then presented, and it was only after the termination of the executor’s accounting that this application to file objections to the account of the administrator was made. Although the period which has elapsed might, by permitting the statute of limitations to run, preclude an adult from asserting such a right at this late day, this would not apply to an infant; and, were there no other consideration in the case than the contention that the statute of limitations is a bar, the application should have been granted. We think, however, that where, as here, it appears that after an account has been filed for several years, and more than four years have elapsed since it has been brought home to the parties interested, it is entirely within the power, right, and discretion of the surrogate to refuse to permit at such a late date the filing of additional exceptions and objections to the account. Where the opportunity is given to file objections to an account, and the person allows it to pass without taking advantage of it, and the time when as matter of-right objections could be filed has passed, it is entirely within the discretion, of the surrogate, on the ground of loches or delay, to refuse permission to file additional objections.

Upon the ground, therefore, that it was within the province of the surrogate to grant or refuse the leave sought, the order appealed from should be affirmed, with costs. All concur.