
    Matter of Beach.
    (Surrogate’s Court—Cattaraugus County,
    April, 1893.)
    An application for a rehearing and to open the decree construing a will and settling the accounts of an executor, upon the ground that the surrogate’s decision was erroneous as matter of law, will be denied, but the decree will be opened for the purpose of correcting clerical errors in the form of the decree and a rehearing granted so far as to determine the executor’s liability on a note credited to him for the full amount, but which he in fact settled for less than its face without giving the estate the benefit thereof.
    This is an application for a rehearing and to open the decree entered herein, construing the will of the deceased and judicially settling the accounts of the executor.
    
      W. O. Laidlo/w, for the widow (moving party).
    
      A. d> O. A. Spring, for executor (opposing).
   Davie, S.

The accounts of the executor were judicially settled by a decree made on the 21st day of September, 1892.

In order to determine the proper disposition to be made of the personal property belonging to the estate, a construction of the will became necessary, and the question presented was whether, under the terms of the will, the widow took the personal property absolutely or only a kfe estate therein.

The widow was represented by counsel upon the proceedings for such judicial settlement, this question of construction was distinctly raised, discussed, submitted and decided by the surrogate, it being then held that the widow was only entitled to the use of such property during life.

The determination of such question depended largely upon the particular phraseology of the will itself. There was no conflict of evidence relating to any of the extraneous circumstances to which resort was had in ascertaining the intention of testator. The question involved was one of law, and the ground alleged in the moving papers for asking such rehearing is that the decision of the surrogate upon this proposition was erroneous as matter of law. Assuming such to be the case, does the power exist to grant the relief sought ?

The Code provides that the surrogate may open, vacate, modify or set aside an order or decree of his court or grant a new trial or new hearing for fraud, newly-discovered evidence, clerical error or other sufficient cause, such power, however, to be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same power (Code, § 2481, subd. 6), and the suggestion of the counsel for the widow is that the alleged erroneous determination of the question of construction constitutes a sufficient cause ” within the meaning of the subdivision above cited, but such suggestion is not sustained by the decisions defining the powers of surrogates under that subdivision. It is held that such powers are limited to cases where fraud, newly-discovered evidence, clerical error ” or other sufficient causes of a like nature exist. Matter of Hawley, 100 N. Y. 206. Other sufficient cause ” means causes of like nature with those specifically named. Matter of Tilden, 98 N. Y. 434.

The subdivision cited does not permit a resort to this method of review where the only error complained of is one of law. Matter of Dey Ermand, 24 Hun, 1; Matter of O’Niel, 46 id. 500; Matter of Hawley, 100 N. Y. 206; Thomas Loan & Trust Co. v. Hill, 4 Dem. 250.

In view of these decisions, I am of the opinion that no authority exists for permitting a reargument or rehearing upon the question of construction, and that the motion should to that extent be denied.

The principal affidavit upon which this application is based is not made by the widow, but by her attorney, and, consequently, the allegations therein contained are necessarily largely upon information and belief, but no objection is made to the form of the moving papers and this motion has been argued and submitted upon the understanding that the papers were in all respects regular.

In the account filed and judicially settled, the executor credits himself and charges the estate with the full amount of a certain note paid by him, which note was signed by the deceased and the executor himself, and such proof was adduced upon the trial as to lead to the conclusion that such note was in fact primarily the individual indebtedness of the deceased. It is alleged in the moving papers that the said executor did not in fact pay the full amount of such note, but procured a settlement of the same at a considerable discount, without giving the estate the benefit of such deduction, and that such information has come to the knowledge of the widow since the former trial.

If these statements are true, and the executor has in fact secured a substantial deduction upon this indebtedness and himself retained the benefit thereof, he is certainly guilty of decidedly improper and reprehensible conduct, which should not be sanctioned or sustained. The newly-discovered evidence claimed to exist is the declarations of the executor to the effect that such deduction from the amount of said note had been obtained by him and the papers presented are sufficient to warrant the opening of the decree to the extent and for the purpose of ascertaining the truth relating to such charge.

Again, it is alleged on part of the widow that a clerical error was committed in the drafting of the decree, and that the decree as drawn is not, in consequence, in conformity with the decision made upon the question of construction.

The claim made is, that under such construction the widow is entitled to entire avails of and accruing interest upon the personal estate from the death of the testator, and that by the decree entered she is deprived of all or of a part of such interest and avails accruing between the death of testator and the date of the decree.

If such error exists that, too, should be corrected and the decree opened for that purpose.

An order should be entered opening said decree and granting a rehearing in this matter for the purpose of determining the question of the executor’s liability to the estate for the deduction obtained on said note and for the further purpose of correcting such clerical error as may exist in the form of the decree.  