In re Gall

• Decision Date: 13 June 1905
• Citation: 182 N.Y. 270,74 N.E. 875
• Parties: In re GALL.
• Court: New York Court of Appeals Court of Appeals

182 N.Y. 270

74 N.E. 875

In re GALL.

Court of Appeals of New York.

June 13, 1905.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceedings by Charles F. Gall to procure a decree modifying a decree settling the accounts of Amelia Gall, administratrix of Joseph Gall. From an order of the Appellate Division (92 N. Y. Supp. 1124) affirming a decree of the surrogate's court settling the accounts, the American Surety Company appeals. Modified.

The respondent's claim arose out of the following facts: In the year 1882 the respondent, a nephew of the decedent, residing in California, then named Charles Funkenstein, gave up a profitable business and came to New York to live with the decedent at the latter's request, upon his agreement to leave his nephew the whole of his estate. The respondent changed his name to Charles F. Gall, lived with the decedent, and took charge of his business. The decedent was at that time a man about 80 years of age. In April, 1883, he made a will in which, after making bequests of $1,000 to each of certain collateral relatives, he left the residue of his estate to the respondent. In 1884 he made a codicil to his will, in which he left to Amelia Stieb (now Amelia Gall, the administratrix, appellant), ‘a former servant of my wife,’ $1,000, and to Betsy Gall, the offspring of testator and Amelia Stieb or Gall, $5,000. He died May 22, 1886, at the age of 82 years. The will and codicil were offered for probate, and on January 9, 1890, probate was refused on the ground that the decedent had been married to Amelia Gall subsequent to the execution of the will and codicil, and that issue had been born to him and his wife of such marriage; such issue being a posthumous child named Caroline Gall. Thereupon and in April, 1890, the respondent commenced a suit in equity for the purpose of compelling specific performance of the agreement between him and the decedent, and to declare the codicil void as in violation of the agreement. In that action the trial court found all the facts in favor of the respondent substantially as above set forth, but dismissed the complaint on the ground that specific performance could not be enforced. A decree to that effect was entered May 11, 1891. Prior to the entry of that decree, and on July 29, 1890, letters of administration had been issued to decedent's wife, Amelia Gall. Shortly thereafter the respondent presented to the administratrix a claim against the estate of his uncle for work, labor, and services. The administratrix petitioned the surrogate's court of Kings county for a judicial accounting of the estate, and on April 7, 1892, procured a decree finally settling her accounts, and distributing the estate between herself and the infant daughter, Caroline Gall. The respondent was not cited to attend the accounting proceeding, and never had any notice of the settlement and distribution of the estate. Thereafter, and on July 18, 1893, the respondent commenced an action at law against the administratrix upon his claim against the estate. She contested this action, and it finally resulted in a verdict in favor of the respondent for the sum of $21,960.60, upon which judgment was entered November 22, 1897, nunc pro tunc as of October 16, 1897. Gall v. Gall, 17 App. Div. 312,45 N. Y. Supp. 248;Gall v. Gall, 27 App. Div. 173,50 N. Y. Supp. 563. After the recovery of that judgment, and its affirmance by the Appellate Division, the respondent commenced this proceeding on September 3, 1898, to modify the decree of April 7, 1892, settling the accounts of the administratrix, so as to direct the payment of the judgment. The administratrix and the American Surety Company, the surety on her bond, were made parties to that proceeding, but the infant, Caroline Gall, was not made a party. At the time it was commenced, eight years and one month had elapsed since the granting of letters to the administratrix. On January 9, 1899, the surrogate denied the respondent's application for the relief sought in that proceeding, upon the ground that his claim was barred by the statute of limitations, but on appeal that decree was reversed by an order entered July 1, 1899. 40 App. Div. 114,57 N. Y. Supp. 835; 42 App. Div. 255,59 N. Y. Supp. 254. Finally, on July 26, 1899, the surrogate made an order opening the decree of April 7, 1892, which settled the accounts of the administratrix, directed distribution, and gave the respondent leave to file objections to the original account as ordered by the decision of the Appellate Division. Upon application of the surety company, that order of the surrogate was resettled so as to provide that the surety company should bring in the infant, Caroline Gall, as a party, although the surety company claimed that it was the duty of the respondent to bring in the infant. The surety company appealed from the order as resettled, and it was affirmed by an order entered February 2, 1900. 47 App. Div. 490,62 N. Y. Supp. 420. The respondent also appealed from the order as resettled, and from each and every part thereof, in so far as it permitted the surety company to bring in the infant. By an order dated March 13, 1900, the Appellate Division reversed so much of the order as permitted the surety company to bring in the infant. 49 App. Div. 636,63 N. Y. Supp. 1108. Before the entry of this last order of the Appellate Division, the surrogate, by an order dated February 15, 1900, extended the time of the surety company to bring in the infant, and meanwhile stayed proceedings. This last order of the surrogate, so far as it extended the time and stayed proceedings, was also reversed by the Appellate Division upon the respondent's appeal. 49 App. Div. 636,63 N. Y. Supp. 1108. The surrogate's order of February 15, 1900, also appointed a referee to try, hear, and determine the issues raised by the objections of the respondent to the final decree. The first report of the referee, dated July 10, 1901, finding in favor of the respondent, was not adopted by the surrogate, as the order appointing the referee had too narrowly circumscribed his authority, and the matter was sent back to the referee. Thereupon the referee submitted a second report, in which he found, among other things, that the administratrix, with full knowledge of the claim of the respondent, had wrongfully and improperly disposed of all of the assets of the estate of the decedent in her hands; that she had converted the same to her own use, and wholly wasted the estate. He charged the administratrix with the sum of $13,061.58, assets of the estate received by her, and with interest thereon at the legal rate from April 7, 1892, and directed that after paying the expenses of the accounting she pay to the respondent the sum of $21,961.60. This report was confirmed by the surrogate, and a decree was entered in accordance therewith. Upon appeal the Appellate Division affirmed this final decree of the surrogate. From the affirmance by the Appellate Division the administratrix and the surety company appealed to this court, and, in their notices of appeal, signified their intention to bring up for review the orders of the Appellate Division above recited, which opened up the original decree, and also the orders relating to the right of the infant, Caroline Gall, to be made a party to this proceeding.Charles F. Brown and George W. McKenzie, for appellants.

Ira Leo Bamberger and Fernando Solinger, for respondent.

WERNER, J. (after stating the facts).

For 20 years this estate has been in litigation. It has been before this court on three previous appeals. Gall v. Gall, 114 N. Y. 114, 21 N. E. 106; 138 N. Y. 675,34 N. E. 515; 160 N. Y. 696, 55 N. E. 1095. The result of it all has been an adjudication finally determining the validity of the respondent's claim to substantially the whole estate. With this adjudication, which seems eminently just on the merits, we are not disposed to interfere unless some insurmountable rule of law compels us to do so.

Upon this appeal two questions are presented for determination: (1) Is this proceeding barred by the statute of limitations? And (2) should the infant, Caroline Gall, have been made a party to it?

1. The appellants' reliance upon the statute of limitations is based on the fact that eight years and about one month elapsed between the date of the granting of letters to the administratrix, July 29, 1890, and the date of the commencement of this proceeding, September 3, 1898. Her counsel invokes the rule laid down in Matter of Rogers' Estate, 153 N. Y. 316, 320,47 N. E. 589, 590, where this court said: ‘It is well settled that, as to legacies not charged upon land, distributive shares of an estate, and debts owing by decedent, the statutes of this state give a concurrent remedy to legatees, creditors, and next of kin in courts of law and equity and in the surrogate's court, and that, as the statute of limitations is a bar at law, it is also a bar in the surrogate's court or in a court of equity.’ There is no question as to that rule, but we think it does not apply to such facts as are disclosed in the case at bar. It will be observed that in December following the issuance of letters to the administratrix she was served with notice of the respondent's claim. It was not rejected, nor were any proceedings taken to have the claim passed upon under the provisions of section 1822 of the Code of Civil Procedure, but an accounting and distribution of the estate were had, just as though the respondent had not been in existence. In that accounting proceeding the administratrix not only made no mention of the respondent's claim, but alleged upon oath that...