
    In the Matter of the Estate of David Dunham Withers, Deceased. Augustus Clason and William P. Clason, Appellants; Alonzo C. Monson, as Executor and Trustee, etc., of David Dunham Withers, Deceased, Respondent.
    
      Su/rrogate—when a final accounting hy an executor should not be* presently ordered.
    
    Where all the property undistributed in the hands of an executor is property which has .been purchased in by the executor and other parties in interest at sales thereof, for the protection of the several parties in interest, including the estate, and such property cannot be presently advantageously sold, a discretion is given to the surrogate, by section 2807 of the Code of Civil Procedure, in deciding whether he will order the executor to render a final account, and such an order is properly denied. •
    Appeal hy the petitioners, Augustus Olason and another, from an order of the Surrogate’s Court of Hew York county, entered •in said Surrogate’s Court on the 9th day of September, 1897, denying their motion for an accounting. .
    
      L. Laflin Kellogg, for the appellants.
    
      Joseph Larocque, Jr., for the respondent.
   Ingraham, J.:

The will of the testator was admitted to probate by the surrogate of Hew York on the 16th day of March, 1892, and on that day letters testamentary were granted to the respondent. In June, 1894, the respondent filed an account of his proceedings, which account was judicially settled by the surrogate of the city and county, of Hew.York on the 5th day of December, 1894. That account was interlocutory; not a final account. Under the decree entered on that accounting the executor has distributed among parties interested in the estate $650,000 of the principal of the estate and over $99,000 of the income. Upon the application of the appellants on June 3, 1897, a citation was issued requiring the executor to show cause why he should not render an additional and ■ final account of his proceedings as executor and trustee. Upon the return of that citation the executor appeared, and in his answer stated that the estate had been distributed, qxcept certain property which had been acquired by the executor upon the foreclosure of certain mortgages or liens held by the testator at the time of his death, one upon a railroad in the State of Illinois and the other upon a piece of property known as the Monmouth Park Associa: tian in the State of Hew Jersey.

From the statement made by the executor it appeared that it had been impossible to dispose of the securities representing the railroad in the State of Illinois because of the fact that the railroad is in the course of construction and that it had not been demonstrated that the securities would be of any particular value. In relation to this railroad it also appeared that there was an action in the Supreme Court of this State, commenced by the testator and his associates, against the bondholders for whom they had acted, to have their accounts as such “ committee adjusted and settled, their lien upon the securities which they held in their hands judicially established, and said securities sold and disposed of for the purpose of repaying the advances which they had made as members of said committee; ” that the testator died pending the said litigation, and the suit was continued by the surviving plaintiffs, and, after a protracted trial, a decree was finally rendered settling the account of the plaintiffs in that action and directing a sale of the securities held by them for their reimbursement; that there was a subsequent sale under that decree at which the executor and his co-plaintiffs in that action were obliged to buy the securities at such sale on behalf of the estate, but that an appeal has been taken from a judgment of the General Term affirming a judgment of the Special Term in that action to the Court of Appeals, such appeal having been taken December 28, 1896, and that the said case is still upon the calendar of the Court of Appeals undetermined; that there is also a litigation in regard to such railroad pending in Illinois in which a claim is made against the property of the estate; and that, until the final settlement of these litigations, it is impossible for the executor to make a final account and distribution of the interests of the estate in said railroad property.

In relation to the Monmouth Park property, it appeared that the testator at the time of his death was the owner of a large amount of mortgage bonds of the association, which was the owner of a race course in the State of Hew Jersey; that the interest upon these bonds was not paid, and that the mortgage was foreclosed by the trustees and the property sold under1 a judicial decree; that under the agreement with the bondholders for their protection, Mr. Cassatt and the deponent, as representing the estate of the said testator, to protect their interests, were obliged to purchase the property at the foreclosure, and. the same was toi be-purchased in trust for -the bondholders in view of its sale at private sale; and that it has been ■ impossible to effect a sale of such property, as all efforts to effect a sale had been unsuccessful. The property .thus acquired was again offered for sale at public auction on the 22d day of- April, 1897, at an upset price of $50,000. No bid therefor was obtained, and since that time the executor has been making diligent efforts to find a purchaser, but without success. It also appears that the bonds of this association held by the estate were used, so far as necessary,-in making payment for the property purchased in the interest of the bondholders, and that it is impossible to distribute the interest of the estate in this property among those interested in the estate until it has been .sold.

The answer of the executor clearly shows that it would be most disadvantageous to the estate to force a sale of these properties at the present time; and it is difficult to see from the statement presented to the surrogate how the- interest of the-estate in either this-railroad company, or in the Monmouth Park .Association, could be divided among those interested. If, therefore, the surrogate had any discretion to refuse to order at this time a final accounting and distribution of the estate, we think his discretion, was properly exercised. •

The proceeding is Under section 2807. of the Code, and it seems to us that this provision clearly contemplates that the surrogate is to exercise a discretion as to when a final accounting should be ordered. The section provides that in either of the following cases the Surrogate’s Court may from, time to time compel a judicial settlement of the account of a testamentary trustee.” There is no express provision here as to when that final accounting is to be ordered, nor as to the frequency with which intermediate accounts shall be required. . The papers in this case show clearly that the time has not arrived for a final accounting and distribution of the estate. It is not claimed that the executor has in his hands any property undistributed, except that connected with the railroad and the park association before mentioned; and where the surrogate haS exercised his discretion in declining to order an intermediate accounting, where the final accounting and distribution cannot be made, we would not be justified in reviewing that discretion, unless it was apparent that the discretion had been abused, or that some such accounting was necessary for the protection of the petitioners. In fact, the application is not made for an intermediate accounting, the object of the petitioners seeming to be to obtain possession of then-share of this estate undistributed; but tlie court is bound to consider, not only the interests of these petitioners, but the interests of all concerned in the'estate; and, from the statement made, it is quite apparent that the interests of the estate would be sacrificed by an immediate distribution of this property.

We think, therefore, that the action of the surrogate was right, and his decree is affirmed, with costs.

Van Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred.

Decree affirmed, with costs.  