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In the Matter of the Judicial Settlement of the Account of Henry B. Fuller and Others, as Executors of the Will of Celia K. Fuller, Henry B. Fuller, Appellant Ottillie N. Danneman and Julia M. Naumann, as Executors, etc., of Celia K. Fuller, and Another
Order of the Surrogate’s Court of Queens county made and entered June 6, 1929, denying the application of appellant for an order reopening and amending the final accounting decree entered on September 21, 1928, and directing the executors and the Bowery Savings Bank to pay or deliver to appellant as a legacy or gift the residue of the estate on deposit with said Bowery Savings Bank, amounting to $13,859.75, with interest, and that said order provide it be delivered without any deduction for services of Benjamin T. Hock, as attorney for the executors, rendered since the entry of said decree, reversed upon the law and the facts, without costs, and application granted, without costs.
Appellant, upon the advice of his former counsel, and in ignorance of his right to elect to receive the principal of the fund (Matter of Cole, 174 App. Div. 534; affd., 219 N. Y. 435; Matter of Bertuch, 132 Misc. 731; revd., 225 App. Div. 773), permitted the decree to be entered in its present form.
While the surrogate is vested with the jurisdiction (Surrogate’s Court Act, § 20, subd. 6) to vacate or modify a decree only in respect to the things specified in the statute and for causes of like nature (Matter of Brennan, 251 N. Y. 802 39), the right to reopen or modify in the interests of justice is not open to question. (Matter of Henderson, 157 N. Y. 423.) This court is of opinion that the facts justify its exercise in the case at bar.
Rich, Seeger and Seudder, JJ., concur; Lazansky, P. J., and Young, J., dissent.