Opinion
January, 1901.
Zabriskie, Burrill Murray, for petitioner.
Michael C. Gross, for respondents.
The application is by one executor for an order directing his coexecutors to permit him, at all reasonable times, freely to inspect and take copies of all books, papers and documents kept by or under the direction of the testator, in his lifetime, containing entries relating to his property, and for further relief. The proceeding is based on a decision and an order to show cause, no citation having been issued or served, and it is contended by the respondents that in a proceeding thus instituted this court is without jurisdiction to make the order asked for. A Surrogate's Court is not vested with the general jurisdiction of a court of equity; its limited powers are based upon and defined by express provisions of law, and its jurisdiction must be exercised in the cases and in the manner prescribed by statute. Matter of Randall, 152 N.Y. 508; Code Civ. Pro., § 2472. Except in a case where it is otherwise specially prescribed by law, a special proceeding in a Surrogate's Court must be commenced by the service of a citation, issued upon the presentation of a petition. Code Civ. Pro., § 2516. This rule of procedure must be followed in this case, notwithstanding the fact that jurisdiction to control executors is expressly conferred by subdivision 3 of section 2472 of the Code of Civil Procedure, unless express authority is found to exercise it in another way. Such express authority is found in section 2602, Code of Civil Procedure, which authorizes the surrogate, in a case where two or more coexecutors or coadministrators disagree respecting the custody of property of the estate, to make an order requiring them to show cause why the surrogate should not give directions in the premises. The order to show cause complies in substance with this provision, and the parties are, therefore, regularly before the court and subject to its jurisdiction already referred to. The latter provision in the same section, to the effect that the direction may proceed so far as to require that the property of the estate shall be deposited in a safe place in the joint custody of all of the executors or subject to their joint order, may define the limitations of the powers of the court, but does not preclude an order less severe, though looking to a similar result. In the present case the property is already in the office used by all of the executors for transacting the business of the estate, and a direction that they shall all of them have access to it for purposes of inspection is all that is asked for, or is necessary. With respect to the substantial right to the relief sought, I entertain no doubt. The title of each executor to the books and papers of the deceased is equal. The testator has trusted them equally and the responsibilities of each are coextensive with those of the others. Neither of them can require the other to rest satisfied with his statement that no entries can be found in them of any particular character. Each is entitled to inspect them and to know for himself just what they contain. The fact that a litigation is pending in the Supreme Court, in which these books are or may be material, is a sufficient reason for requiring a prompt exhibition of them. Each executor owes a duty to the parties interested in the estate to present to the Supreme Court every fact pertinent to the litigation pending before it, and neither of them can be permitted to exclude the other from access to property of the estate which would be helpful for this purpose. The fact that the Supreme Court has full jurisdiction to obtain a discovery of the books is not material. It is enough that this court has sufficient jurisdiction and that its jurisdiction has been properly invoked. Application granted.
Application granted.