November 26, 1975
Appeal from the Schenectady County Surrogate's Court, GEORGE E. SEVERSON, S.
Kendall R. Pirro for appellant.
Under the testatrix's will, all the cash in her possession at the time of death was to be divided among eight specifically named legatees, share and share alike, and all the rest and remainder of her property was left to appellant who was also named executrix. All the cash, which totaled $19,615.59, was distributed as directed except that appellant withheld $784.63 as executrix's commissions on the cash. When the cash was distributed to the legatees, all of whom were adults, they were clearly informed of the withholding of commissions, advised not to sign any documents if they had any objection and yet all signed all documents, including receipts, releases and waivers of citation, and, in fact, still do not object. Nevertheless, the Surrogate refused to approve appellant's final accounting on the ground that the commission of $784.63 should have been paid out of the residuary estate.
We cannot concur in the Surrogate's decision. It is clear that the Surrogate has broad power in an accounting proceeding "to decree intelligently and upon equitable principles" (4A Warren's Heaton, Surrogates' Courts, § 379, par 8, subd [b]; see Matter of Wagner, 119 N.Y. 28) and to require a judicial settlement of accounts on his own motion, absent a petition by any party, if it appears that the best interests of the estate would be served thereby (SCPA 2205). Where, however, there is no objection by any interested party and absolutely no indication of any fraud or concealment in obtaining waivers of citation, the Surrogate may not refuse to approve an account (Matter of De Vany, 205 N.Y. 591; Matter of Badenhausen, 38 Misc.2d 698; 4A Warren's Heaton, Surrogates' Court, § 379, par 8, subd [b]). We pass on no other issues.
The decree should be reversed, on the law and the facts, and the matter remitted for further proceedings not inconsistent herewith, without costs.
HERLIHY, P.J., GREENBLOTT, KOREMAN and MAIN, JJ., concur.
Decree reversed, on the law and the facts, and matter remitted for further proceedings not inconsistent herewith, without costs.