In re the Judicial Settlement of the Accounts of Steencken

Rumsey, J.: William Steencken was temporary administrator of the estate of Christian Koch, and Steencken and Herman Bolte were the executors of Koch after the probate of his will. In December, 1895, Steencken filed his accounts as temporary administrator, and at the same time he and Bolte filed their accounts as executors of .Koch’s estate. Objections were filed to both accounts. The matter was referred to a referee and a hearing was had. The referee filed his report in the month of September, 1896. Ho action seems to have been taken upon it until the month of October, 1899, when the surrogate, having had the matter brought before [418] him, overruled the objections tó the. report and decreed-that it should be confirmed. After that had been done it was ascertained • that Steencken had died after the filing of the referee’s report: ;, a-nd upon that fact being brought to the notice of the surrogate he made an order denying the application to enter an order confirming- the referee’s-report and for a. decree directing the distribútion of' the estate, on the ground of want of power because the personal representatives of the décéased' executor were necessary parties. '.From that order this appeal is taken. • So far as it concerns the accounting by Steencken- as; temporary administrator there can be no .doubt that the proceeding . abated upon his death. (Matter of Schlesinger, 36 App. Div. 77.) So,, also, the right .of the surrogate to enter any personal decree against Steencken in respect of. his accounts as executor abated by his death; .but it does not follow'from that fact that the surrogate-was correct in. refusing ta enter any decree whatever - in the matter. The two-, executors-took the estate as joint-tenants. (1 R. S. 727, § 44; Real Prop. Law [Laws of 1896, chap. 547], § 56.) When- one of them died all his interest in the estate vested in the surviving executor (Matter of Kreischer, 30 App. Div. 313, 315), and it was his duty to proceed to complete the distribution of the estate. . (Code Civ. Proc. § 2692.). After Steencken’s death, therefore, all- the property- which had been in the hands of the two executors of Koch came by act of the law into, the hands and possession of Bolte,'-and-he, as surviving executor, was bound to go on and complete the distribution of . the estate.' Proceedings for an accounting, so far as he was concerned, still existed,, and although the surrogate by the- death of, Steencken" lost any power to máké a decree which would charge Steencken .personally in respect of "the property of the estate which wras .in his hands, if - there was. any such," yét no reason is apparent why he should lose the power to proceed "against" Bolte and to. dispose of all the property which was- in his hands, or, having .been in the: pos-, session of both of the executors; vested in the possession of Bolte at the death of his có-éxecutor. ' In actions against partners and trustees in respect of thé joint property where One of. them dies, all the property vests in the other ás survivor, and- it-is: not necessary to discontinue"the action or to substitute the personal representatives .of the deceased partner-or [419] trustee for the purpose of establishing a liability against the firm or the estate; but in such cases the action may be continued against the living defendant by filing upon the record a suggestion of the death, and an order continuing the proceeding against the living person. We see no reason why this procedure should not be pursued in this matter. "We are not advised as to the precise nature óf the liability adjudged against these executors by the referee’s report,, but it is fair to assume by what appears in the papers that the report of the referee established the amount which they had in' their hands. So far as that, is concerned, a decree may still be made to distribute" the property which is in the hands of Bolte as executor, or that may have come into his hands as surviving executor,- or to make such other decree as may be necessary to protect the rights of the parties, although not to charge Steeneken personally with any liability. It may be, too, that if the fact is that Steeneken has in his hands property of the estate for which he should file his accounts personally, that the surrogate, in the exercise of his ’ discretion, may postpone the entry of a decree until such steps should be taken either by the surviving executor or by the .surrogate himself, under section 2606 of the Code of Civil- Procedure, to establish Steencken’js liability; but so far as the property of the estate is in the hands of the surviving executor, we see no reason why a decree may not be entered against him fixing the amount in his hands and disposing of the estate. For this reason the surrogate erred in refusing to enter any decree, and-the' order must be reversed, with costs, and the matter remitted t'o the surrogate in order that he may proceed upon the lines here indicated. Van Brunt, P. J., Patterson; Ingraham and Hatch, JJ., concurred. Order reversed, with costs, and matter remitted to the surrogate.