Opinion
Argued October 11, 1899
Decided November 21, 1899
Edmund R. Terry and Eliphalet B. Terry for appellant. Theron G. Strong for respondents.
We think that jurisdiction is given to this court to review the order appealed from, under the provisions of subdivision one of section 190 of the Code of Civil Procedure. The proceeding, which the executors have instituted for the purpose of a judicial settlement of their accounts, is a special proceeding. Section 2731 of the Code sufficiently indicates that, if it were needed to find authority for the statement. The order, or decree, of the surrogate was final in its nature; for it determined the rights of the parties to the proceeding, to the extent that it actually adjudged upon them. (Code, section 2550.) That the accounting may be an intermediate one, in the sense that the estate is not now finally distributed, does not affect the final character of the decree. It terminated the proceeding, and, so far as it determined any question raised upon the accounting, it is conclusive upon the parties interested and who were cited, until reversed upon appeal. (Code, section 2742.)
The statutory provisions not only require this construction in our judgment, but to hold otherwise would be to highly embarrass the prompt and effective administration of the estates of deceased persons.
As to the merits of this appeal, we find no good or sufficient reason for disturbing the decision of the Appellate Division, in affirming the decree of the Surrogate's Court, and we think that the judgment appealed from should be affirmed upon the opinion delivered in the court below, with costs to the respondents.
All concur, except PARKER, Ch. J., BARTLETT and MARTIN, JJ., who dissent on the ground that the order is not appealable.
Order affirmed.