In re the Accounting of Robertson

Smith, J.: At the threshold of the argument the appellant challenges the right of the surrogate to thus amend his decree. By subdivision 6 •of section 2481 of the Code of Civil Procedure, in specifying the incidental powers of the surrogate, it is provided: “ 6. To open, vacate, modify or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error or other sufficient ■cause. The powers conferred by this subdivision must be ‘exercised only in a like case and in the same manner as a court of- record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant Jo this subdivision, the General Term, of the Supreme Court has the same power as the surrogate; and his determination must be reviewed as if an original application was made to that term.” In Matter of Henderson (157 N. Y. 423), at page 426, Judge O’Bbien, in writing for the court, says : “ The general powers of the Surrogate’s Court are wholly statutory, but it certainly must possess *' * * some inherent power, and the correction of their •own records, wheh affected by some mistake or clerical error, would seem to . be about as mild" an exercise of such power as can well be imagined. This power is. recognized and perhaps- regulated by various statutes, but it does not proceed from or rest upon statutes, since it would exist without them. (Hatch v. Central National Bank, 78 N. Y. 487; Vanderbilt v. Schreyer, 81 N. Y. 646 ; Ladd v. Stevenson, 112 N. Y. 325.) ” In Campbell v. Thatcher (54 Barb. 382) it was held that, although a surrogate, after the parties in interest had been represented at a hearing before him, and final sentence or decree has been given, has not general power to open or reverse his sentence or decree, on the ground that he erred as to the law, or decided erroneously upon the facts, he may open such decree for the purpose of correcting any mistake therein, the. result of accidsnt. In that case, by inadvertence the surrogate’s decree failed to credit the. executor with an item of $500, and an order by the surrogate opening the decree .and making the credit was held to be authorized. If the proceedings were in the Supreme Court,.power to correct the judgment to conform.to .the-decision made would not be disputed. [120] ' While the' practice in Surrogates’ Courts differs somewhat, and the decree, rather than the decision, is the official utterance of the. surrogate, nevertheless the decision filed becomes a part of the-record to show any omission from ■ the decree by. reason, of mistake or inadvertence. Upon the right of these legatees to immediate payment from this executor there has been no adjudication. These legatees would have had no appeal from the decree as first entered, because their petition was not, denied. Power must exist in. the surrogate so "to modify the decree as to express the decision made and authenticated under his-hand upon'the. record. Otherwise these legatees,, without a right of appeal or without a. right of correction, would be. remediless. But this appeal is also-from the decree as amended. The contention of 'the appellant is that, notwithstanding he has overpaid some-of the legatees, inasmuch as the surrogate has found that this was-done in good faith, he cannot be charged" by the legatees whose-lawful proportion has not been paid, until he has collected bacjr the-amount overpaid from the other legatees. This contention is without support either in authority or reason. The executor had a right" • to refuse to pay any -legatee more than his lawful proportion of theasséts realized. Such was his duty." Any payment in- excess thereof he made at "his peril. He is properly charged with the money - which he ought to have .applicable to the payment of. these legacies, and his own stupidity or good faith will not relieve him. The case of Harvard College v. Quinn (3 Redf. 514) is cited as. holding a contrary doctrine. This was a cas'e-- where -certain legacies- ■ were required to be paid before other legacies. At the time of the-payment of the prior legacies there were sufficient funds to pay in full: In the case at bar there is no question of a prior legacy. The legacies were all to be paid at-the same time, and it was the duty of the executor to pay ratably. And this proposition is not without authority. In Matter of Underhill (117 N. Y. 471), Judge Pboicham, in writing-fort'he-co.urt,, says.: “The claim that the executor makes of an alleged overpayment by him to a legatee, is a matter,.so far as a recovery thereof by the-executor is 'concerned, between him and such legatee. * * *' An overpayment made by the executor to any,person entitled to a. [121] distributive share does not in any way diminish the amount of the estate which the law says'is in the executor’s hands for distribution. The law does not recognize any such overpayment, and does not, therefore, permit the executor to credit himself with the amount of the excess. In legal contemplation, the sum is in the hands of the executor as assets of the estate which he must pay over to the parties entitled thereto.” (See, also, Matter of Lang, 144 N. Y. 275; Matter of Hodgman, 140 id. 430.) We find no reason, therefore, for disturbing the order amending the surrogate’s decree or the decree as amended. Order amending decree and decree as amended affirmed, with costs. All concurred. Decree and order affirmed, with costs.