
    In the Matter of the Estate of Mary J. Heaney, Deceased. Arthur J. Heaney, Appellant; Frank E. O’Reilly, as Executor, etc., of Mary J. Heaney, Deceased, Respondent.
    Second Department,
    April 24, 1908.
    Executors and administrators—-final accounting — further accounting as to assets.
    Where the final accounting of the executor of a deceased executrix fails to include moneys which should have been received by her estate as commissions allowed on the settlement of the estate of which she was executrix, the beneficiary under her will may compel her executor to make a further accounting for the commissions.
    Although the final accounting of such executor has already been confirmed, he may be compelled by a motion to make a further accounting; the petitioner is not compelled to move to open the former decree.
    A former accounting by an executor does not bar a subsequent accounting where it appears that it did not include debts collected.
    Appeal by the petitioner, Arthur J. Heaney, the sole legatee under the will of Mary J. Heaney, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 19th day of ¡November, 1907.
    
      Walter Jeffreys Carlin, for the appellant.
    
      Cliarles H. Kelby, for the respondent.
   Hooker, J.:

The appellant filed his petition in the Surrogate’s Court, asking that the executor of the estate, Frank E. O’Reilly, file his accounting. The facts are hardly in dispute, and show that on the 21th day of August, 1906, Frank E. O’Reilly, executor of the last will and testament of Mary J. Heaney, deceased, filed an accounting, and the same was judicially settled, and he was discharged as executor ; the decree directed the payment to Arthur J. Heaney, the appellant, of a sum of upwards of $5,000, which amount has been paid to him. This was the first and only accounting filed by Frank E. O’Reilly, as executor of the last will and testament of Mary J. Heaney, deceased. Mary J. Heaney, before her death, was one of the executors and trustees under the last will and testament of one Arthur J. Heaney, deceased, the respondent, Frank E. O’Reilly, being her coexecutor and cotrustee. After the decease of Mary J. Heaney, her coexecutor in the estate of Arthur J. Heaney, deceased, borrowed from her estate the sum of $15,000 for the benefit of the estate of Arthur J. Heaney, deceased, and this sum has not been repaid into the estate of Mary J. Ileauey, deceased, nor has the appellant, as sole legatee under her will, received any benefit therefrom. It also appears that in and by the last will of Arthur J. Heaney, deceased, it was provided that one-half of the income of his estate be paid to Mary J. Heaney; that certain sums thereof were paid to Maíy J. Heaney during her lifetime, but at the time of her death in August, 1904, there was due to her, as shown by the account filed by the executor of the estate of Arthur J. Heaney, deceased, upwards of $20,000. It also appears that at the time of her death there was due to Mary J. Heaney, by way of commissions as executrix óf the estate of Arthur J. Heaney, deceased, something over the sum of $2,000. In relation to this item it appears that it was ordered in a decree made in the Arthur J. Heaney estate on the 12tli day of January, 1905, that Frank E. O’Reilly, executor and trustee of that estate, should pay to himself, as executor of the last will and testament of the said Mary J. Heaney, deceased, this sum of commissions. Althoirgh the accounting of Frank E. O’Reilly in this estate was not made until the 24tli day of August, 1906, nevertheless his petition for an accounting did not mention this sum of over $2,000 which was to have been paid to himself, as executor of Mary J. Heaney, by way of her commissions, from the estate of Arthur J. Heaney, deceased. This item actually came into the hands of Frank E. O’Reilly before his final accounting in the estate of Mary J. Heaney, deceased, or should have come into his hands, for the decree in the Arthur J.'Heaney estate antedated his accounting in this estate by eighteen or nineteen months; and it is to be presumed he obeyed the mandate of that decree and paid to himself this sum of over $2,000. Ho mention, however, was made in his account in the Mary J. Heaney estate of- this sum, and the petitioner, the appellant here, desires him to make a further account: Firsts of the loan of $15,000; second, of the charge in the estate of Arthur J. Heaney of over $20,'000 which Mary J. Heaney was entitled to, and, third, this item of $2,000 for commissions. The learned surrogate has denied the motion of the petitioner for an accounting and the petitioner appeals.

There may, or may not, he practical reasons why the executor of the estate of Mary J. Heaney should delay making his account for the $15,000 and the $20,000 items, owing to the state of the administration of the affairs of Arthur J. Heaney, deceased. As to the item of $2,000, however, which Mary J. Ileauey was entitled to by way of commissions as one of the executors of the estate of Arthur J. Heaney, there seems to be no valid reason why Frank E. O’Reilly, as her executor, should not account for the same. It is not denied that his accounting of August, 1906, made no reference to this item.

It is suggested that the appellant’s remedy was by motion to open the decree instead of by motion to compel a further account. With this contention I can hardly agree. Section 2142 of the Code of Civil Procedure provides: “ A judicial settlement of the account of an executor or administrator, either by the decree of the Surrogate’s Court, or upon an appeal therefrom, is conclusive evidence, against all the parties who were duly cited or appeared, and all persons deriving title from any of them at any time, of the following facts, and no others: * * * 3. That the money charged to the accounting party, as collected, is all that was collectible, at the time of the settlement, on the debts stated in the aceou-nt.” The decree of a surrogate having jurisdiction until opened or set aside has the same conclusive effect as the judgment of any other court. (Matter of Hood, 90 N. Y. 512.) It hardly seems necessary or proper, therefore, to open the decree heretofore made in this matter. It is not contended that as to any of the debts mentioned in the former account there has been any error or miscarriage of justice; the contention is that there were other debts collectible which were not accounted for, and, hence, of course, such other debts not having been mentioned in the account the decree upon the accounting, was not conclusive as to them, nor did it adjudge anything in respect thereto. ¡Nor is the former accounting a bar to this application. It was said in Matter of Hood (supra): “It is doubtless true that what is known as a final accounting of executors and administrators before a surrogate does not preclude a proceeding against them for a subsequent accounting based upon new facts, such as the discovery or realization of assets since the first accounting.” In this case there has been by the appellant discovered assets which were not included in the first accounting. The presumption is that they were in the hands of the executor before his accounting, and under the circumstances it seems to me that the appellant has a strict legal right to call the executor to account for the $2,000 item of commissions. As to the other items, the one of $15,000 and the other of $20,000, the case does not seem so clear. However, at the time the executor accounts for the $2,000 item the affairs of the estate of Arthur Heaney, deceased, may then be in such shape that it will be proper and important for the protection of the appellant’s rights that the executor of the estate of Mary J. Heany, deceased, shall then account for them as well.

I advise that the order of the surrogate be reversed, with costs, and the prayer of the petition be granted.

Woodward, Gay nor and Bioh, JJ., concurred; Jenks, J., concurred only so far as the $2,000 item is concerned.

Order of the Surrogate’s Court of Kings county reversed, with ten dollars costs and disbursements, and petition granted, with ten dollars costs.  