Yale v. Baker

New York Supreme Court

Yale v. Baker

9 N.Y. Sup. Ct. 468

DecidedJuly 1, 1874

StatusPublished

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Bluebook

Yale v. Baker, 9 N.Y. Sup. Ct. 468 (N.Y. Super. Ct. 1874).

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Opinion

Gilbert, J.:

The accountings sought to be opened, were all had before the surrogate who made the order appealed from. It now appears that the inventory of the estate of the decedent, and most of the vouchers filed in the office of the surrogate upon such accountings, have been lost. It would be a great hardship to the predecessors of the petitioner, to compel them to account over again under such circumstances, and it is manifest that an order compelling them to do so, might work great injustice. Upon the evidence before us, therefore, we should not be disposed to interfere with the discretion exercised by the surrogate. But we are satisfied that the order should be affirmed, upon the ground that it is not within the province of the petitioner to institute such a proceeding. An administrator de bonis non may sue to recover goods unadministered, but he has no power, nor is it any part of his duty, to overhaul the accounts of his predecessors in the trust. The latter are liable only [470]*470to the creditors or next of kin. Nothing would be concluded or settled in the surrogate’s court, if the rule were otherwise.

*

Another insuperable obstacle to the maintenance of the petition, is, that the errors which it alleges, would require a mere review by the surrogate, of his former decrees. This can be done only by appeal. The surrogate, we think, acquired jurisdiction to make the decrees. No fraud in procuring them is alleged, and the errors suggested rest upon facts which are not positively stated, and are not apparent in the proceedings. Moreover, they are positively denied by the respondents, and they could be established only by extrinsic proof. In such a case, the surrogate has no power to open a decree. †

The order appealed from must be affirmed, with costs.

Order affirmed, with costs.

Beall v. New Mexico, 16 Wall., 535; Potts v. Smith, 3 Rawle, 361; Young v. Kimball, 8 Blackf., 167 ; Marsh v. People, 15 Ill., 285; Goodyear v. Bloodgood, 1 Barb. Ch., 617.

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Gilbert, J.:

The accountings sought to be opened, were all had before the surrogate who made the order appealed from. It now appears that the inventory of the estate of the decedent, and most of the vouchers filed in the office of the surrogate upon such accountings, have been lost. It would be a great hardship to the predecessors of the petitioner, to compel them to account over again under such circumstances, and it is manifest that an order compelling them to do so, might work great injustice. Upon the evidence before us, therefore, we should not be disposed to interfere with the discretion exercised by the surrogate. But we are satisfied that the order should be affirmed, upon the ground that it is not within the province of the petitioner to institute such a proceeding. An administrator de bonis non may sue to recover goods unadministered, but he has no power, nor is it any part of his duty, to overhaul the accounts of his predecessors in the trust. The latter are liable only [470]*470to the creditors or next of kin. Nothing would be concluded or settled in the surrogate’s court, if the rule were otherwise.

*

Another insuperable obstacle to the maintenance of the petition, is, that the errors which it alleges, would require a mere review by the surrogate, of his former decrees. This can be done only by appeal. The surrogate, we think, acquired jurisdiction to make the decrees. No fraud in procuring them is alleged, and the errors suggested rest upon facts which are not positively stated, and are not apparent in the proceedings. Moreover, they are positively denied by the respondents, and they could be established only by extrinsic proof. In such a case, the surrogate has no power to open a decree. †

The order appealed from must be affirmed, with costs.

Order affirmed, with costs.

Beall v. New Mexico, 16 Wall., 535; Potts v. Smith, 3 Rawle, 361; Young v. Kimball, 8 Blackf., 167 ; Marsh v. People, 15 Ill., 285; Goodyear v. Bloodgood, 1 Barb. Ch., 617.

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9 N.Y. Sup. Ct. 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yale-v-baker-nysupct-1874.

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