Everts v. Everts

By the Court, Mullin, J. It was competent for the executor to settle his accounts before the surrogate, and if all those who were entitled to notice voluntarily appeared, the surrogate had jurisdiction, and his decree thus made is final, unless appealed from. If a court has jurisdiction of the subject matter, voluntary appearance completes the jurisdiction, and authorizes any decree or judgment which the court may make. I think the surrogate properly allowed the expenses of the executor in coming from Iowa when the will was. proved. The testator knew that such journey must né-. c'essarily be made, and it was necessary to enable him to' qualify. I have, some doubt about the allowance of the charge for board. That is an item covered by the commissions, unless it forms part of the expenses of a journey made expressly, on the business of the estate. An executor or administrator cannot charge for board at his own house while engaged in the business of the estate. The time for [582] which allowance is made is very long, having regard to the small amount of assets which passed into the hands of the executors. But as the expenses of the journey are allowable, it is proper, perhaps,, to allow the board. The expenses of- the subsequent journeys and board were properly disallowed. The. journeys were wholly unnecessary, so far as appears by the ease. For a tithe of the money charged, a competent agent would have performed all the services rendered by the executor. The surrogate having allowed the costs of the suits brought by the executors, I see no reason why we should interfere with his decree on that ground. The surrogate erred in receiving evidence of the declarations of the testator, against the executor, in reference to their own private business. The declarations of the testator or intestate are competent against the personal representative in actions between the latter and third persons in reference to the estate. As his acts bind the representative, so do his declarations. But that has no analogy to the case at bar. The effort, as I understand it, was to show that the executor was owing the estate borrowed money, and it was proposed to prove it by the declarations of the testator. They were clearly incompetent, and ought not to have been received. The evidence of E. P. Everts, as to the declarations of the testator, are quite direct and specific, and I am finable to say whether they were of .any weight in the case. Being incompetent, it is the duty of the party offering them to show that they were harmless. The surrogate also erred' in charging the executor with the note which the testator held at his death against him. The ¡Revised Statutes, (vol. 3, p. 171, § 14, 5th ed.,) provide, that naming any person in a will as executor, shall not operate as a discharge or be.quest of any just claim which the testator had against such executor, but such claim shall be included among the credits and effects of [583] the deceased in the inventory, and such executor shall be liable for the same as so much money in his hands at the time such debt or demand becomes due; and he shall apply and distribute the same in payment of debts and legacies and among the next of kin, as a part of the personal estate of the deceased. The reason why the debt was held, before the passage of the act, of which the clause cited is a part, to be released by appointing the debtor, or one of several joint debtors, executors, was, that there was no person to bring suit upon it, and such result being brought about by the voluntary act of the testator, the debt was held to be released, But it will be seen, by the section cited, that it is not every claim which the testator had against the person named as executor that becomes “ assetsbut it is any u just claim.’’ The executor is prima facie chargeable, but it is competent for him to show the claim unfounded and unjust. The validity or justice of the claim must, when denied, be in some way determined, and as the executor, cannot sue himself, and as the question must be settled before the estate can be finally settled, it must be tried in the surrogate’s court in the same way, and for the same reason, that claims against the estate in favor of the executor .must be tried in that court. By trying in that court, the parties lose the benefit of a trial by jury ; but that results from the voluntary act of the creditor in the one case, and the debtor in the other, accepting a trust which makes another mode of trial absolutely necessary. [Oswego General Term, July 8, 1862. Mullin, Morgan and Bacon, Justices.] The decree of the surrogate must be reversed, and proceedings remitted to the surrogate’s court, to the .end that the validity of the note alleged to be usurious, may be determined.