Shorter v. Mackey

13 A.D. 20, 43 N.Y.S. 112

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1897
• Status: Published

Opinion

Merwin, J.:

Under the provisions of the Revised Statutes, which regulated the references of claims against an estate (§§ 35-37, tit. 3, chap. 6, part 2), it was said in many cases that only those claims were referable which accrued during the life of the decedent, or would have accrued against him if he had lived. (Godding v. Porter, 17 Abb. Pr. 374; Smith v. Patten, 9 Abb. [N. S.] 205; Skidmore v. Post, 32 Hun, 56.) That was the view taken in Matter of Van Slooten v. Dodge (145 N. Y. 327, 332). In Sands v. Craft (10 Abb. Pr. 216) it was held that the liability of the estate of a deceased executor for assets held b'y him as such at his death is not a debt of the estate which could be referred, under the provisions of the Revised Statutes.

The claim of the plaintiff did not accrue during the lifetime of Mrs. Shorter, and, under the doctrine of the cases above referred to, would not be referable under the statute. She held the principal of the estate in trust. The plaintiff, as surviving executor, had the right, upon her death, to call upon her representative for an accounting. By the decree of the Surrogate’s Court, she was to hold the property according to the provisions of the will, and it cannot be assumed that it was the intention of that court to discharge lien •from her duty3 as executrix or testamentary trustee, to preserve the principal of the estate for the benefit of the residuary legatees. Upon the death of an executor or testamentary trustee, his successor or a surviving executor can compel the executor or administrator of the decedent to account in the Surrogate’s Court. (Code Civ. Proc. § 2606; Matter of Clark, 119 N. Y. 427; Matter of Fithian, 44 Hun, 457.)

The reference in this case was under the provisions of section 2718 of the Code, as amended in 1893. These are in substance the same as the provisions of the Revised Statutes, except that it is provided that, upon the entry of the order o'f reference, the proceeding shall become an action in the Supreme Court. The effect of this provision was considered in Rutherford v. Soop (85 Hun, 119), and it was, in substance, held that the amendment did not operate to enlarge the scope of references of disputed claims.

If the case could be treated as an action for an accounting, it is not clear that the dismissal of the action was improper in view of the remedy for an accounting in the Surrogate’s Court. The rule is, that when complete relief can be obtained in the Surrogate’s -Court, a court of equity will decline to entertain an action for an accounting against executors. (Wager v. Wager, 89 N. Y. 161; Strong v. Harris, 84 Hun, 314.)

It is claimed by the plaintiff that the defendant, by consenting to refer, waived the objection that the claim was not - referable. It was, however, held otherwise in Matter of Van Slooten v. Dodge (supra).

■ The referee did not, I think, err in dismissing the case. The cause of action of the plaintiff was for an accounting, and that was not the proper subject of the summary reference provided for in the Revised Statutes and in the substituted provisions of the Code.

All concurred.

Judgment affirmed, with costs.