In re Watson

• Decision Date: 01 June 1915
• Citation: 109 N.E. 86,215 N.Y. 209
• Parties: In re WATSON et al. In re HOFFMAN'S WILL.
• Court: New York Court of Appeals Court of Appeals

215 N.Y. 209

109 N.E. 86

In re WATSON et al.

In re HOFFMAN'S WILL.

Court of Appeals of New York.

June 1, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

In the matter of the judicial settlement of the account of Susan Matilda Watson, as executrix, and William H. Harris, as executor, of Mary C. Hoffman, deceased, in which Margaret H. Gallatin appealed from an order of the Appellate Division (165 App.Div. 252, 150 N.Y.Supp. 776) affirming a decree of the Surrogate's Court settling the account. Reversed.

Albert Stickney, of New York City, for appellant.

Paul R. Towne, of New York City, for respondents.

MILLERS, J.

The question involved in this appeal is whether the surrogate had jurisdiction to determine the issue raised by the objections to the executors' account interposted by the appellant to the effect that the executors had failed to account for a ruby ring and a pearl necklace which it was alleged belonged to the testatrix at the time of her death. One of the accounting executors, a daughter of the testatrix, claimed that the ring and necklace had been given to her by her mother. The surrogate referred the matter to a referee, who reported in favor of the appellant. So much of the report as related to that subject was overruled by the surrogate on two grounds, viz.: (1) That the appellant had not sustained the burden of showing that the property omitted from the schedule of account belonged to the estate of the testatrix: and (2) that in any event the surrogate did not have jurisdiction to determine the matter. The Appellate Division passed on the question of jurisdiction only, and affirmed the decree, “without prejudice to the appellant's right to the maintenance of an action to recover for the estate of the testatrix the article involved in this appeal.”

The Appellate Division decided the case on the authority of Matter of Schnabel, 202 N.Y. 134, 95 N.E.698, in which it was decided that section 2731 of the Code of Civil Procedure had not conferred general equitable jurisdiction on the Surrogate's Court; e.g., to set aside a transfer as fraudulent and void as to creditors. The appellant in this case merely invoked the jurisdiction of the surrogate to compel an executor to account for the property of his testator, and the exercise of that jurisdiction depended solely on the determination of the question of fact whether the property belonged to the testatrix at the time of her death. If the mere assertion of a claim of ownership by an executor ousts the surrogate of jurisdiction to compel an account of the property of the testator, it will be a simple matter to accomplish that result in every case in which an executor may prefer some other tribunal. Section 2731 of the Code of Civil Procedure, as far as material, provides:

“On the judicial settlement of the account of an executor or administrator, he may prove any debt owing to him by the decedent. Where a contest arises between the accounting party and any of the other parties respecting property alleged to belong to the estate, but to which the accounting party lays claim, either individually or as the representative of the estate; or respecting a debt alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party, the contest must, except where the claim is made in a representative capacity, in which case it may, be tried and determined in the same manner as any other issue arising in the Surrogate's Court.”

It would seem that the present case falls within both the letter and the spirit of the provisions just quoted. The learned surrogate, however, thought otherwise, for the reasons that there are two accounting parties in this case, and the statute uses the singular number, “accounting party,” and for the further reason that the property in question did not belong to the estate of the testatrix. The first reason takes a too narrow view of the statute, and the second is based on a decision of the very question which it was thought the surrogate did not have jurisdiction to decide. Section 2472, subd. 4, of the Code of Civil Procedure (Ed.1913), provides that the Surrogate's Court has jurisdiction inter alia to enforce “the payment or delivery, by executors, administrators, and testamentary trustees, of money or other property in their possession, belonging to the estate.”...