Altman v. Hofeller

• Decision Date: 20 April 1897
• Citation: 152 N.Y. 498,46 N.E. 961
• Parties: ALTMAN et al. v. HOFELLER et al.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 498

46 N.E. 961

ALTMAN et al.

v.HOFELLER et al.

Court of Appeals of New York.

April 20, 1897.

Appeal from supreme court, general term, Fifth department.

Action by Isaac and Julius Altman, as administrators of Jacob Altman, deceased, against Eli Hofeller and others. From a judgment of the general term (31 N. Y. Supp. 881) reversing the judgment against defendant Hofeller, plaintiffs appeal. Reversed.

Norris Morey, for appellants.

William N. Cogswell, for respondent.

MARTIN, J.

The general and principal purposes of this action were to obtain a judicial settlement of the accounts of Gabriel Wile, as general guardian of Eli Hofeller, and as administrator of the estate of Lily Hofeller, deceased, and of the accounts of Schanette Wile and Lehman Hofeller, as administratrix and administrator of the estate of Sigmund Hofeller, deceased; to vacate all proceedings had or taken for any such settlement in any other court; to charge Gabriel Wile with any and all amounts of money received by him from the estate of Sigmund Hofeller, either as guardian of Eli Hofeller or as administrator of Lily Hofeller, and thereby to relieve the estate of the plaintiffs intestate from liability by reason of his having been one of the sureties on the administrators' bond given by Schanette Wile and Lehman Hofeller. An interlocutory judgment was entered for the settlement of such accounts, and they were finally settled by a judgment of the supreme court entered upon the report of a referee, which was made after Eli Hofeller had attained his majority, and become a party to this action. The judgment thus entered was to the effect that the portion of the estate which belonged to Eli Hofeller had been paid over to and received by his guardian, and, as to the portion which belonged to Schanette Wile, that, having become responsible for the whole estate, and any devastavit thereof, she could not enforce, for her own benefit, the bond signed by the plaintiffs' intestate, and therefor the estate of Jacob Altman was discharged from all liability upon the administrators' bond. From that judgment Eli Hofeller, Gabriel Wile, and Schanette Wile appealed to the general term, where the judgment was reversed as to Eli Hofeller, and as to the other appellants it was in all things affirmed. Subsequently an application was made to that court to amend its decision so as to vacate the settlement of the accounts of the representatives of the estate of Sigmund Hofeller. That application was denied. The court, however, amended its decision by adding thereto: ‘But that the settlement of the accounts of Schanette Wile and Lehman Hofeller, as administratrix and administrator of Sigmund Hofeller, deceased, by the referee in this action, and the judgment therein, shall be of no force and effect as against said (Eli) Hofeller in the further proceedings in this action.’ From this provision in the order the plaintiffs appealed to this court, where the appeal was dismissed upon the ground that the order of the general term could only be appealed from by them as a whole, with the usual stipulation for judgment absolute. 137 N. Y. 619, 33 N. E. 601. But the court, in its opinion, stated that the question might be properly raised on a new trial by the plaintiffs insisting that the accounting was conclusive notwithstanding that provision, on the ground that the general term had no power to make the judgment of no force between the plaintiffs and Eli Hofeller while the accounting was left to stand as between the accounting parties. Schanette Wile, as administratrix, and Gabriel Wile, as such guardian, appealed to this court from the order of the general term affirming the judgment as to them, and the judgment of affirmance was here affirmed. 141 N. Y. 574, 36 N. E. 228. In pursuance of the order of the general term awarding Eli Hofeller a new trial, a referee was subsequently appointed. On the trial before him no evidence was offered to show that the previous settlement of the accounts of the administratrix and administrator of the estate of Sigmund Hofeller was incorrect, or that there was any fraud or mistake therein. The respondent insisted that the referee should retake and restate their accounts, while the appellants claimed that the former judgment setting such accounts was conclusive evidenceof their correctness, and that there was nothing due to the respondent from the representatives of the estate of Sigmund Hofeller. The referee held that the judgment previously entered was still conclusive between the respondent and the plaintiffs, and that the latter were entitled to a judgment discharging them from any liability upon the administrators' bond. The respondent excepted to the finding of the referee, although no exception was taken to his rulings on the trial. From the judgment entered upon the report of the last referee the defendant appealed to the general term, where it was reversed, and the plaintiffs have appealed to this court, stipulating for judgment absolute in case of affirmance.

The only question presented upon this appeal relates to the effect of the partial reversal of the former judgment, and of the provision added to the decision of the general term by amendment. The respondent contends, and the general term has held, not only that it was authorized to make the order amending its decision, but that the effect of that order, as to the respondent, was the same as though the former judgment had been wholly reversed, and the settlement of the accounts of the representatives of Sigmund Hofeller had been vacated, and set aside. It will be helpful to a proper understanding of this question to briefly refer to the law relating to the estates of deceased persons, their settlement, and the duties and liabilities of personal representatives of decedents. Upon the death of a person intestate his personal estate passes into the hands of his administrators, who are alone responsible for its preservation and distribution according to law. They are required to account for the estate; parties interested are entitled to be heard upon the accounting; and when heard, and a judicial settlement is had, the settlement is conclusive against all the parties who are properly cited or appear, and all persons deriving title from any of them, as to any allowances made to the accounting party for money paid to creditors, legatees, or next of kin. Code Civ. Proc. § 2742. It is also conclusive upon the sureties on the administrator's bond. The same principle applies to the sureties upon a bond given by a guardian when there has been an accounting by him. Scofield v. Churchill, 72 N. Y. 565;Gerould v. Wilson, 81 N. Y. 573, 583;Deobold v. Oppermann, 111 N. Y. 531, 536,19 N. E. 94;Douglass v. Ferris, 138 N. Y. 192, 201,33 N. E. 1041. In the present case there was a judicial settlement of the accounts of the administrators and of the general guardian of the respondent in a court of general jurisdiction, where all the parties interested were before the court, including the respondent; and it was there determined that the administrators had paid to the general guardian of the respondent his distributive share in the estate; that his entire interest had been paid to and received by his general guardian as such, and that for that reason the plaintiffs were not liable upon the administrators' bond for any portion of the estate to which the respondent was entitled. As the original judgment in this action, which has been affirmed by this court, finally settled the accounts of the administrators and of the guardian of the respondent, so long as it remains unreversed it is conclusive and binding upon all parties. The representatives of Sigmund Hofeller cannot be again called upon to render an account, or to pay the respondent any portion of his share of his father's estate while that judgment remains unreversed, as it conclusively adjudged that his share had been paid to his guardian during his minority, and...