In re the Judicial Settlement of the Accounts of Taylor

Learned, P. J.: As to the personal property, specifically.bequeathed to the widow, Susan Wagner, with remainder to Norman L., it is-plain that the executrix and executors had nothing to do but to deliver it to the life tenant. The remainderman, Norman L., was entitled to have from her an inventory. Perhaps, in a proper case, he might have [27] security from lier. .But tlie duty of the executrix and executors of William Wagner was performed when they delivered the property to the widow. The paper signed by the widow and Norman L., is proof until contradicted, that that specific legacy was properly delivered. If Norman L. or his widow, the petitioner, seeks to obtain that property, they must proceed against the executors of Busan Wagner’s will. As to the rest of the property, the question, briefly stated, is this: When the executors of a will have fully accounted and settled with' all the legatees, and have paid them their respective shares and have been discharged by such legatees out of court, can the administratrix of one of those legatees, without proof of any fraud, compel the filing of an inventory ? There certainly seems to be no reason, upon principle, why the parties in interest should not, without any proceeding in court, examine an executor’s inventory and account and settle the same and give him a full discharge. The provisions for filing an inventory and for having accounts are for the benefit of the persons interested, not for the satisfaction of the public or of the assessors; and if such persons prefer to settle their affairs privately, such settlement should have the same conclusive effect as a similar settlement in any other matter. That view is especially strong in the present case, because the petitioner is the representative of one of the executors, who (it is to be presumed) had, and knew of, the inventory of property and the accounts of the executors, and who distributed to himself and the other legatees his and their respective shares, according to the instrument of March 7, 1885. There is mo doubt that, in some court, relief can be had by the petitioner against that instrument, if it was obtained by fraud. But the question here is, whether, notwithstanding- the settlement of which, at present, that instrument is evidence, she has a right to compel the filing of an inventory. The petitioner cites several eases which we must examine. (Thomson v. Thomson 1 Bradf., 21). In this case it turned out-on examination that the inventory had been filed. Therefore, there could be no decision as to the right to compel its filing. Burwell v. Shaw (2 Bradf., 322), was not a case in regard to an inventory, but in regard to granting letters. Creamer v. Waller (2 Dem. 351), was the case of a creditor whose debt was disputed, [28] but who showed facts in support thereof. In Bonfanti v. Deguerre (3 Bradf., 429), the executor, in reply to the petitioner, alleged an assignment of the petitioner’s claim. It was held that this was not a sufficient answer. Matter of Dunkel (10 N. Y. St. Rep., 213), held only that an executor could have his commission from a co-executor, notwithstanding his having signed a receipt for his distributive share. In re Brown (3 Civil Pro. R., 39), has nothing to do with the filing of an inventory. (In the Matter of Read, 41 Hun, 95.) This was an application by a distributee to compel an accounting It was opposed by the administrator on the ground of a general release of all claims and demands and of all liability as administrator. The court held that the surrogate could determine the validity of the release, and that an accounting should be ordered. The decision that the surrogate could try the validity of the release is there stated to rest on Harris v. Ely (25 N. Y., 138). In Bevan v. Cooper (72 N. Y., 317), the court say that the remark in Harris v. Ely was obiter, and it is disapproved. Indeed, it may be considered as decided by that case, and by Stilwell v. Carpenter (59 N. Y., 414) and Tucker v. Tucker (4 Keyes, 136), that the surrogate, could not pass upon the validity of the release. The case of Van Sinderen v. Lawrence (20 N. Y. St. Rep., 72), was one in regard to a testamentary trustee, and is said, in the opinion, to be analogous to a similar case in regard to an executor. The plaintiff, a testamentary trustee, stpplied to the surrogate for an accounting. The defendant claimed to be made a party, and was so made. The •plaintiff objected to defendant’s being heard, on the grounds of a release. The surrogate refused to pass on the validity of the release. This action was commenced to restrain the proceedings before the surrogate until decision by the Supreme Court on the validity of the release. The action was sustained. Similar to this is Pettigrew v. Foshay (12 Hun, 486). These cases imply that the proceedings before the surrogate should not go forward until a court of equity had decided that the release is invalid. The case of Kenny v. Jackson (1 Hagg. Ecc., 105) is repeatedly cited. That was a ease in the Prerogative Court of Canterbury. In the opinion it is remarked that it was claimed that Kenny, the petitioner, was a minor when he released, and that he certainly was a very young man. The court further say that they cannot notice such an [29] instrument, but that if the executor is vexatiously cited lie may liave relief in another court. It would seem, then, that in that case the youth of the petitioner was considered, and, also, that it was thought that some other court could relieve the executor if the proceedings were vexatious. We suppose that if this executor has been cited vexatiously the surrogate should have relieved him, and certainly no question exists in this case as to the legatees being of full and ripe age. It is worth noting here that the surrogate in his opinion says, that, after an accounting shall have been had, should the petitioner proceed to ask a decree against the executor in respect to any portion of the funds of the estate,'it may then be necessary to determine the validity of the release and its effect. Now, as the filing of an inventory and the having an accounting are of no use unless the petitioner can have a decree for some funds, and as the surrogate cannot try the validity of the release, it would seem that this proceeding must be of no avail. That is, suppose an inventory be filed and an accounting had, and thereupon it should appear that the value of the estate on the 7th of March, 1885, was more than’ six times the amount received by Norman L. Wagner, what then is to be done? An action must be brought to set aside the release on the ground of fraud. If that action should be unsuccessful, then the filing of an inventory and the accounting would have been useless. But it is strongly urged that the inventory and the accounting should be had in order to furnish facilities for the plaintiff to prove that the settlement of March, 1885, was fraudulent. But all this can substantially be obtained in an action to set aside the settlement. The plaintiff can, in such an action, examine the defendant and compel the exhibition of all the inventory and accounts which may be needed. In such an action the whole matter can be investigated and satisfactorily disposed of. The petitioner further relies on section 2715 of the CJode of Civil Procedure, subdivision 2. The note informs us that this is intended to settle a question. It is quite as likely to unsettle it. If it means that any person. who will verify a petition, that he is interested, however false the allegation may be, can compel inventories and accountings in an estate in which he has no shadow of interest, it has introduced a most dangerous, principle. Such should not be its [30] construction. No person should, without .reasonable evidence of interest, interfere in the settlement of an estate; and where there has been a voluntary settlement and release by all' the parties interested, the representative of one of those parties should have such settlement and release set aside in a legal manner before the matter should be reopened. The court should not discourage parties from voluntarily making a full settlement in the case of estates of deceased persons any more than in any other matters of trust. The order of the surrogate shopld be reversed, with costs. The same, also, as to the order of accounting. .Ingalls, J., concurred; Landon, J., dissented. Orders of surrogate reversed, with costs on each appeal.