In re the Final Judicial Settlement of the Account of Proceedings of Smith

Appellate Division of the Supreme Court of New York

In re the Final Judicial Settlement of the Account of Proceedings of Smith

120 A.D. 199, 105 N.Y.S. 223, 1907 N.Y. App. Div. LEXIS 1143

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 21, 1907

StatusPublished

Cited by22 cases

This text of 120 A.D. 199 (In re the Final Judicial Settlement of the Account of Proceedings of Smith) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Final Judicial Settlement of the Account of Proceedings of Smith, 120 A.D. 199, 105 N.Y.S. 223, 1907 N.Y. App. Div. LEXIS 1143 (N.Y. Ct. App. 1907).

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Opinion

McLaughlin, J.:

The executor under the last will and testament of Phoebe' Dé Saxe applied to and obtained from the Special Term'of this court an order directing all ¡versons interested in the. estate, either as legatees, creditors or otherwise, to appear before one of the justices of this court sitting iú Special Term, at a time and -place stated, to attend a final judicial settlement of his accounts as executor. [200]*200Thereafter a' residuary legatee ' upon notice,; moved upon petition and an - affidavit that the order be vacated. The motion was granted and the executor appeals.

There is no doubt, that the equitable branch of the Supreme . Court possesses jurisdiction concurrent with’ the Surrogate’s Court to entertain an action for an accounting by an executor. (Haddow v. Lundy, 59 N. Y. 320.) The statute, however, gives full power to Surrogates’ Courts to settle the accounts of executors and administrators and distribute the estate among the persons entitled to receive the sanie, and that is the appropriate tribunal for the settlement of such .accounts'.- (Chipman v. Montgomery, 63 N. Y. 221.) The’ rulé seems to be well settled "that where- complete relief can1 be , obtained in the Surrogate’s Court, the Supreme Court will refuse to exercise its equitable powers to- entertain, an action for an accounting • (Wager v. Wager, 89 N. Y. 161; Anderson v. Anderson, 112 id. 104); in other words, it'-will decline- to take jurisdiction of ’ an action for an accounting by the representatives of -the estate of a deceased person unless special facts and circumstances are alleged showing that the case is one requiring relief of such a nature that the Surrogate’s Court is not competent' to- grant it, or some reason assigned or" facts stated" to show that complete justice cannot be", done in "that court. (Sanders v. Soutter, 126 N. Y. 193; Citizens' Central National Bank v. Toplitz, 113 App. Div. 73.) And when it does take jurisdiction it will only -be in an action in which- the special -facts and- circumstances are set forth in the complaint. Here, the application was by petition and tliore were no special facts. and circumstances alleged; on the contrary, the only facts stated by reason of which a settlement - is sought in the Supreme Court is that the petitioner is advised- by li.is attorney that if he accounts in the Surrogate’s Court “ that owing to the stringent rules of evidence which are made applicable to the said court- by section 2729 of "the Code of Civil Procedure, governing the admission of evidence as to payments by executors, where ho vouchers can be produced, he would be unable to testify as to such, a payment or to’ introduce all his evidence tending to prove the said payment as alleged in -the said schedule and thereby working great injustice and hardship upon your petitioner.” Obviously, this -is not a reason why the court .should, take jurisdiction, and if it -did, the' executor would [201]*201have to produce .the same kind of proof as to payments that he would in the Surrogate’s Court. By the provision of section 2729 of the Code of Civil Procedure, such items of expenditures may only be allowed without a voucher when the item does not exceed $20, and the whole amount of such items so allowed shall not exceed in the aggregate $500. This provision of the Code is applicable to accountings of executors or administrators in the Supreme Court. (Matter of Nutting, 74 App. Div. 468.) The purpose'of this statute is to protect estates by providing a rigid rule of evidence as to payments by executors or administrators. Its purpose cannot be weakened or destroyed by accounting in the Supreme Court instead of the Surrogate’s Court.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.-

Order affirmed, with ten dollars costs and disbursements.

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McLaughlin, J.:

The executor under the last will and testament of Phoebe' Dé Saxe applied to and obtained from the Special Term'of this court an order directing all ¡versons interested in the. estate, either as legatees, creditors or otherwise, to appear before one of the justices of this court sitting iú Special Term, at a time and -place stated, to attend a final judicial settlement of his accounts as executor. [200]*200Thereafter a' residuary legatee ' upon notice,; moved upon petition and an - affidavit that the order be vacated. The motion was granted and the executor appeals.

There is no doubt, that the equitable branch of the Supreme . Court possesses jurisdiction concurrent with’ the Surrogate’s Court to entertain an action for an accounting by an executor. (Haddow v. Lundy, 59 N. Y. 320.) The statute, however, gives full power to Surrogates’ Courts to settle the accounts of executors and administrators and distribute the estate among the persons entitled to receive the sanie, and that is the appropriate tribunal for the settlement of such .accounts'.- (Chipman v. Montgomery, 63 N. Y. 221.) The’ rulé seems to be well settled "that where- complete relief can1 be , obtained in the Surrogate’s Court, the Supreme Court will refuse to exercise its equitable powers to- entertain, an action for an accounting • (Wager v. Wager, 89 N. Y. 161; Anderson v. Anderson, 112 id. 104); in other words, it'-will decline- to take jurisdiction of ’ an action for an accounting by the representatives of -the estate of a deceased person unless special facts and circumstances are alleged showing that the case is one requiring relief of such a nature that the Surrogate’s Court is not competent' to- grant it, or some reason assigned or" facts stated" to show that complete justice cannot be", done in "that court. (Sanders v. Soutter, 126 N. Y. 193; Citizens' Central National Bank v. Toplitz, 113 App. Div. 73.) And when it does take jurisdiction it will only -be in an action in which- the special -facts and- circumstances are set forth in the complaint. Here, the application was by petition and tliore were no special facts. and circumstances alleged; on the contrary, the only facts stated by reason of which a settlement - is sought in the Supreme Court is that the petitioner is advised- by li.is attorney that if he accounts in the Surrogate’s Court “ that owing to the stringent rules of evidence which are made applicable to the said court- by section 2729 of "the Code of Civil Procedure, governing the admission of evidence as to payments by executors, where ho vouchers can be produced, he would be unable to testify as to such, a payment or to’ introduce all his evidence tending to prove the said payment as alleged in -the said schedule and thereby working great injustice and hardship upon your petitioner.” Obviously, this -is not a reason why the court .should, take jurisdiction, and if it -did, the' executor would [201]*201have to produce .the same kind of proof as to payments that he would in the Surrogate’s Court. By the provision of section 2729 of the Code of Civil Procedure, such items of expenditures may only be allowed without a voucher when the item does not exceed $20, and the whole amount of such items so allowed shall not exceed in the aggregate $500. This provision of the Code is applicable to accountings of executors or administrators in the Supreme Court. (Matter of Nutting, 74 App. Div. 468.) The purpose'of this statute is to protect estates by providing a rigid rule of evidence as to payments by executors or administrators. Its purpose cannot be weakened or destroyed by accounting in the Supreme Court instead of the Surrogate’s Court.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.-

Order affirmed, with ten dollars costs and disbursements.

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120 A.D. 199, 105 N.Y.S. 223, 1907 N.Y. App. Div. LEXIS 1143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-final-judicial-settlement-of-the-account-of-proceedings-of-smith-nyappdiv-1907.

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