Yale v. Baker

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 thai 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 unadminis [12] tered, 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 to the creditors or next of kin. Nothing would be concluded or settled in the surrogate’s court if the rule were otherwise. 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. 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 ease the surrogate has no power to open a decree. Brick's Estate, 15 Abb. 30; Sipperly v. Baucus, 34 N. Y. 49; Campbell v. Thatcher, 54 Barb. 383; Decker v. Elwood, 3 N. Y. Sup. 48. The order appealed from must be affirmed, with costs. Order affirmed.