Opinion
Argued November 28, 1882
Decided December 12, 1882
Edward P. Wilder for appellant. John J. Macklin for respondents.
On the 11th day of November, 1881, a petition was presented to the surrogate of Westchester county in behalf of William Hood, Annie Hood and Bertram Hood, three of the children of Andrew Hood, deceased, praying that a citation issue to Frederick Hood and Maria Louise Hood, executors of the will of Andrew Hood, requiring them to appear before the Surrogate's Court and show cause why they should not render an account of their proceedings, and render and settle their accounts. The petitioners alleged in the petition that they were interested in the estate of Andrew Hood, under the provisions of his will; that letters testamentary thereon were granted to Frederick Hood and Maria Louise Hood, executors, April 13, 1864; that more than a year had elapsed since letters testamentary were issued; that the executors had sold the real property of the deceased, pursuant to a power contained in the will, and that certain persons named, other than the petitioners, were interested in the estate. The surrogate thereupon issued a citation requiring the executors to show cause, on a day named, why they should not render and settle an account of their proceedings as executors. On the return of the citation, Frederick Hood appeared and interposed an answer to the petition, setting forth, among other things, a decree of the surrogate of Westchester county, made on a final accounting by the executors, dated January 6, 1869, reciting the issuing of a citation in that proceeding, and proof of service upon the petitioners in this proceeding, and other necessary parties, and the appearance of the petitioners by guardian ad litem duly appointed, and adjudging the final settlement of the account of the executors as therein stated. The present petitioners demurred to the answer as insufficient. The surrogate sustained the demurrer and made an order dated January 13, 1881, that the executors render an account of their proceedings, etc., and of the sales of real estate of the testator, made by them, and of the disposition of the proceeds. We think the decree of January 6, 1869, on the final accounting, was prima facie a good answer to the petition. It recited all the facts necessary to give the surrogate jurisdiction in that proceeding. The recitals show that the petitioners were duly served with the citation, and that they appeared by guardian ad litem, duly appointed. The account, as settled, shows that the executors had invested the sum of $55,047.40, under the trusts contained in the will. It is doubtless true that what is known as a final accounting of executors and administrators before a surrogate does not preclude a proceeding against them for a subsequent accounting based upon new facts, such as the discovery or realization of assets since the first accounting. ( Glover v. Holley, 2 Bradf. 291.) But the statute makes the final settlement and allowance by the surrogate of the account of executors or administrators conclusive evidence of certain facts embraced therein, upon creditors, legatees and next of kin, duly cited in the proceeding (2 R.S. 94, § 65), and the decree of the surrogate having jurisdiction, until opened or set aside, has the same force and effect as the judgment of any other court. The decree of January 6, 1869, presumptively embraced all the matters as to which the executors were liable to account. If new facts existed, which rendered it proper that a further accounting should be had, they should have been averred in the petition. But no such facts were averred, and the jurisdiction of the surrogate to render the decree was not questioned. We think the petition in this case should have been dismissed, and the order of January 13, 1881, and January 30, 1881, should that be reversed. If the facts exist, which entitle the respondents to a further account from the executors, they may be shown on a new application, or if they are liable to account as testamentary trustees, the statute provides the method of procedure in that case, but this proceeding was not of that character.
Orders of General Term and surrogate reversed, with costs.
All concur, except TRACY, J., absent.
Orders reversed