In re the Estate of Crowley

New York Surrogate's Court

In re the Estate of Crowley

2 Mills Surr. 123, 33 Misc. 624, 68 N.Y.S. 939

DecidedJanuary 15, 1901

StatusPublished

This text of 2 Mills Surr. 123 (In re the Estate of Crowley) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Crowley, 2 Mills Surr. 123, 33 Misc. 624, 68 N.Y.S. 939 (N.Y. Super. Ct. 1901).

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Opinion

Thomas, S.

— 'The proceeding is to compel judicial settlement of the account of Norah L. Crowley, as executrix. By the will of the decedent, his wife, Elizabeth Crowley, and his daughter, Norah L. Crowley, were named as executors, and they were also made residuary legatees to share equally in his estate, after the payment of funeral expenses and expenses of administration. On May 9, 1893, letters testamentary were issued to Elizabeth Crowley, Norah L. Crowley not qualifying. In March, 1900, Elizabeth Crowley died, leaving the administration of the estate uncompleted. On April 27, 1900, letters testamentary were issued to Norah L. Crowley, and in July she collected and received something over $6,000, being the amount due on a mortgage representing a part of the estate. The petitioner is the administrator of the estate of Elizabeth Crowley. It thus appears that more than seven years have expired since letters Were first issued, and that less than one year has expired since letters were first issued to the executrix [124]*124wbo is proceeded against. Tbe question presented is as to tbe power of tbe surrogate to- require an accounting, at this time. Tbe language of tbe statute is that tbe Surrogate’s Court may compel a judicial settlement of tbe account of an executor or administrator wben one year bas expired since letters were issued “ to' bim.” Code Civ. Pro., § 2726. An executor or administrator may proceed voluntarily to procure bis account to be judicially settled where one year bas expired since letters were issued “ to sucb executor or administrator.” Code Civ. Pro., § 2728. It would seem that these provisions were sufficiently explicit and that tbe application must be denied. There are some decisions which do- not point to this result, and, though I cannot agree with them, they should be referred to. In Cuthbert v. Jacobson, 2 Dem. 134, upon somewhat similar facts, Bergen, S., on bis own motion and without argument; directed an accounting on tbe ground that tbe year should be computed from tbe granting of tbe first letters. Citing Code Civ. Pro., § 2593. This section is to tbe effect that “ Where it is prescribed by law, that an act, with respect to tbe estate of a decedent, must or may be done within a Specified time after letters testamentary or letters of administration are issued, and successive or supplementary letters are issued upon tbe same estate, tbe time so specified must be reckoned from tbe issuing of tbe first letters, except in a case where it is otherwise specially prescribed by law.” It is not applicable to tbe present question because tbe act of accounting and procuring a judicial settlement is not required to be done “ within a specified time after ” tbe issue of letters. Tbe provision bas application only to acts which must or may be done, if at all, within a specified limited time, reckoned- from tbe granting of letters. Sucb an act is tbe filing of a petition in a proceeding to sell land for tbe payment of debts within three years after letters issued. Code Civ. Pro., § 2750. It does not aPPty to 311 act which may only be done after tbe expiration [125]*125of a specified time after the issue of letters, and can only be compelled after the expiration of that time. And even if that provision had application, this case is not within it, because it is “ specially prescribed by law ” that the judicial settlement of the account of an executor can only be compelled when one year has expired after letters were issued “ to him.” In Matter of Burling, 5 Dem. 47, Coffin, S., distinguished an administrator de bonis non from an administrator receiving the original letters, and permitted him to account and distribute after one year from the issue of the original letters. This case is different in its facts from the one now before me, and, even if correct in its conclusions, has no application. A decision of Rollins, S., sustains my conclusion. Estate of William Menck, 5 N. Y. St. Repr. 341. The application is denied on the ground of want of power to direct a judicial settlement of the account of the executrix before the expiration of a year from the time of the granting of letters to her.

Application denied.

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Thomas, S.

— 'The proceeding is to compel judicial settlement of the account of Norah L. Crowley, as executrix. By the will of the decedent, his wife, Elizabeth Crowley, and his daughter, Norah L. Crowley, were named as executors, and they were also made residuary legatees to share equally in his estate, after the payment of funeral expenses and expenses of administration. On May 9, 1893, letters testamentary were issued to Elizabeth Crowley, Norah L. Crowley not qualifying. In March, 1900, Elizabeth Crowley died, leaving the administration of the estate uncompleted. On April 27, 1900, letters testamentary were issued to Norah L. Crowley, and in July she collected and received something over $6,000, being the amount due on a mortgage representing a part of the estate. The petitioner is the administrator of the estate of Elizabeth Crowley. It thus appears that more than seven years have expired since letters Were first issued, and that less than one year has expired since letters were first issued to the executrix [124]*124wbo is proceeded against. Tbe question presented is as to tbe power of tbe surrogate to- require an accounting, at this time. Tbe language of tbe statute is that tbe Surrogate’s Court may compel a judicial settlement of tbe account of an executor or administrator wben one year bas expired since letters were issued “ to' bim.” Code Civ. Pro., § 2726. An executor or administrator may proceed voluntarily to procure bis account to be judicially settled where one year bas expired since letters were issued “ to sucb executor or administrator.” Code Civ. Pro., § 2728. It would seem that these provisions were sufficiently explicit and that tbe application must be denied. There are some decisions which do- not point to this result, and, though I cannot agree with them, they should be referred to. In Cuthbert v. Jacobson, 2 Dem. 134, upon somewhat similar facts, Bergen, S., on bis own motion and without argument; directed an accounting on tbe ground that tbe year should be computed from tbe granting of tbe first letters. Citing Code Civ. Pro., § 2593. This section is to tbe effect that “ Where it is prescribed by law, that an act, with respect to tbe estate of a decedent, must or may be done within a Specified time after letters testamentary or letters of administration are issued, and successive or supplementary letters are issued upon tbe same estate, tbe time so specified must be reckoned from tbe issuing of tbe first letters, except in a case where it is otherwise specially prescribed by law.” It is not applicable to tbe present question because tbe act of accounting and procuring a judicial settlement is not required to be done “ within a specified time after ” tbe issue of letters. Tbe provision bas application only to acts which must or may be done, if at all, within a specified limited time, reckoned- from tbe granting of letters. Sucb an act is tbe filing of a petition in a proceeding to sell land for tbe payment of debts within three years after letters issued. Code Civ. Pro., § 2750. It does not aPPty to 311 act which may only be done after tbe expiration [125]*125of a specified time after the issue of letters, and can only be compelled after the expiration of that time. And even if that provision had application, this case is not within it, because it is “ specially prescribed by law ” that the judicial settlement of the account of an executor can only be compelled when one year has expired after letters were issued “ to him.” In Matter of Burling, 5 Dem. 47, Coffin, S., distinguished an administrator de bonis non from an administrator receiving the original letters, and permitted him to account and distribute after one year from the issue of the original letters. This case is different in its facts from the one now before me, and, even if correct in its conclusions, has no application. A decision of Rollins, S., sustains my conclusion. Estate of William Menck, 5 N. Y. St. Repr. 341. The application is denied on the ground of want of power to direct a judicial settlement of the account of the executrix before the expiration of a year from the time of the granting of letters to her.

Application denied.

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Bluebook (online)

2 Mills Surr. 123, 33 Misc. 624, 68 N.Y.S. 939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-crowley-nysurct-1901.