
    In the Matter of the Judicial Settlement of the Accounts of William M. Hoes, Public Administrator, and Administrator of Henry Ahlers, Deceased, Respondent. Marie Heitmeyer and Others, Appellants.
    First Department,
    May 24, 1907.
    Executors and administrators — distribution —section 2732 of the Code ■ of Civil Procedure construed — power of surrogate to amend decree making erroneous distribution.
    By virtue of the amendment to section 2732 of the Code of Civil Procedure, made by the Laws of 1898, chapter 3l9, the descendants of brothers and sisters are entitled absolutely to all the personal estate of an intestate who leaves no widow or descendants .to the exclusión of the descendants of uncles and aunts. When'the descendants of uncles and aunts have by error in the-construction of said section be.en allowed to share in the estate, the.surrogate lias power to correct his decree: so far as it affects the shares of those collateral relatives who . have not appeared and taken the benefits of the decree;
    ' Lambert, J., dissented, with opinion.
    Appeal by Marie Heitmeyer and others from a decree of the Surrogate’s Court of the county of New York, entered in said. Surrogate’s Court on. the 30th day of July, 1906, denying their appli- . - cation to modify a prior decree entered upon the accounting of the .administrator. ,
    
      Frederick G. Gladden, for the appellants.
    • Ho appearance for respondent.
   Ingraham, J.:

.Henry Aiders died on the 1st of April, 1899, leaving no widow and no descendants. His' next of kin .were certain nephews and nieces and there were also the descendants of uncles and aunts. Letters were issued to the public administrator who filed his accounts, and by final decree settling the accounts, five-elevenths of the estate was paid to.the nephews and nieces and six-elevenths directed to be paid to the issue of the decedent’s uncles and aunts. On September 1, 1898, prior to the death of the decedent, an amendment to section 2732 of the Code of Civil Procedure (Laws of 1898, chap. 319) went into effect. Under the provisions of that amendment the descendants of an intestate’s uncles and aunts were not entitled to a distributive share of the estate, the whole estate belonging to the nephews and nieces. On the settlement of the public administrator’s accounts, the usual citation was issued and served by publication, these collateral relatives not residing in this State. Under this decree the public administrator has paid some of the collateral relations of the intestate, but certain other of these collateral relations have never appeared to claim the sums directed to be paid to them, and the public administrator still holds the sum of $880 as the distributive share under the decree of certain of these collateral relations who have not applied for the moneys directed to be paid to them.

The rights of these descendants of the uncles and aunts of an intestate to a distributive share of his estate under section 2732 of the Code of Civil Procedure was determined by the Court of Appeals in Matter of Davenport (172 N. Y. 454), where it was expressly held that, under the provisions, of this section, “brothers and sisters and their descendants inherit .in the.first instance, and if there be none, then the an ms and uncles of the intestate and their descendants take.” Under this decision, therefore, the.petitioners who are the descendants of the brothers and sisters were entitled t absolutely to all the personal estate of the intestate. .

This decree, having thus been entered based upon an erroneous construction of the effect of the amendment to section 2732 of the Code of Civil Procedure, I think that the surrogate had the power to amend his .decree so far as to affect the shares of those of the Collateral relations of the intestate who had not appeared and taken the benefit given to them by the decree. It is not a case .in which the parties have appeared and - the question as "to their light to a distributive share of the estate determined in their favor. • These collateral relatives had' never appeared- and never claimed any portion' of this property or interest -in it.'. There had been ño determination by the surrogate of any- question presented, but the' surrogate had éntered On motion of the public administrator a decree distributing the estate to parties who were not entitled to it and had nó interest therein. . Such a decree entered by default is, we think, subject to correction, and; the surrogate had ample authority to correct the decree which had been entered by mistake, and which erroneously disposed of property of the intestate, certainly ■ until those who were entitled to the property have appeared and claimed the benefit' of the decree. There is no application to modify this decree so- as to affect the right of those who have' appeared and taken the benefits Under it. I think, under the circumstances^ the surrogate should have corrected the palpable mistake that was made, and modified the decree, so that the moneys still in the hands of the public administrator which the decree, directed to be paid to those who were not entitled to it should be .paid to those who clearly are entitled to it. ,

"We thinkj. therefore, the order appealed from should be reversed, the motion granted, and the modification asked for allowed, without costs of this" appeal. _

Patterson," P. J., McLaughlin and ClaRke,. JJ., concurred; Lambert, J., dissented.'. ...

Lambert, J.

(dissenting): •

I am Unable to-concur in the decision reached by the other members Of this court. Henry Aiders died on the 1st day of April, 1899, leaving him "surviving no widow, children, adopted Children or -the issue of such, and ho parents. He is survived by tile petitioners, his only "nephews' and nieces, and by certain collateral kin, the issue of various Uncles and aunts, Consisting of children, grandchildren and greatgrandchildren. William M; Hoes, public administrator and administrator of Henry Alders, deceased, has.;accounted to- the surrogate, and a decree was entered on the 21st day of June, 1901, settling the accounts of the! public administrator and directing the distribution of certain sums to the relatives of the deceased. The pétitioners appeal from the'order of the' surrogate denying a motion' to modify the decree.

The decree of the Surrogate’s Court which the petitioners seek to have modified directed that five-elevenths of the estate be distributed to them, and that six-elevenths be paid to the collateral relatives. The petitioners are all residents of Germany, and did not appear on the accounting, service having been made upon them pursuant to section 19 of chapter 230 of the Laws of 1898, by service upon the consul-general of Germany on their behalf, and the amounts directed to be paid to them by the said decree were received by the German ■ consul-general, their duly authorized attorney in fact. ' It appears that certain of the remote relatives, the respondents herein, who were served by publication, upon the accounting, as their respective places of residence were not known, have not appeared or claimed the sums directed to be paid them under the decree. The shares remaining unpaid aggregate-about $880. The petitioners do not seek to compel the public administrator to repay any sums which . may have been paid to any.'of the remote relatives, but' it is their purpose to have the decree so modified ás to permit of the distribution of the sum now oh hand to the petitioners, on the ground that under the'decision of the Court‘of Appeals in Matter of Davenport (172 N. Y. 459) these remote relatives were not entitled to any part of the-estate of the- decedent.

Section 2743 of the Code of Civil Procedure provides that where the validity of a debt, claim or distributive share is admitted or has been established upon the accounting or other proceeding in the Surrogate’s Court or other court of cdmpetent jurisdiction, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions-concerning the same, and that “ with respect to the matters enumerated in this section the decree is conclusive as a judgment upon each party to the special proceeding who was duly cited or appeared, and upon every person deriving title-from such .party.”- If it be conceded, therefore, that the collateral relatives, under the decision in Matter of Davenport . (supra), are not entitled to any share of the decedent’s estate, it cannot be said that the court was without jurisdiction,-for it is made the duty of the Surrogate’s Court to determine to.whom the fund, is payable, and the decree is made conclusive, subject, of course, to-the right of review. ■ The court had jurisdiction of the subject-matter and of the persons of the petitioners,, who wéiie duly cited. . The- petitioners have' accepted the determination of the court by receiving without question the amounts found to be due and directed to be paid-by the decree, and if -there was a mistake in fixing the amount, due to a misunderstanding of the law, this is not a jurisdictional defect, but an error to be corrected on appeal. . (Matter of Underhill, 117 N. Y. 471, 479.) The-petitioners have accepted the portion decreed to them, have remained passive from the 21st day of June, Í901j to the 26th day of April, 1906, and. by this special proceeding attempt to set aside á conclusive judgment in favor of the' respondents. . .,

It is urged that the Surrogate’s Court han discretion, under the. provisions of- section. 2481, subdivision 6, of the Code Of Civil Procedure, to modify, Correct or vacate, its own- decrees. We may assume this to be-the case, and yet we may-not be .authorized, upon . a review of the decree, to direct that this discretion shall be exercised in a particular way. There can be no doubt that upon an .appeal from the Special Term this court is called; upon to review upon the merits all orders resting in discretion ; but this rule is not applicable to appeals from another and distinct tribunal such as the Surrogate’s Court. There our appellate authority, is confined to errors of law or to matters of substantial right which are not dependent Upon the discretion of such court. Where, as here, the surrogate is expressly clothed with discretion, the -utmost, that-can be claimed is that we may review his action so far as to. ascertain whether “ there has been an abuse of discretion ,aiid; a violation of .justice.’’ (Matter of Adler, 60 Hun, 481,483, citing Matter of Selleck, 111 N. Y. 290. See, also, Matter of Blum, 83 App. D.iv. 161,162.) ■It certainly will-not be contended, that this appeal presents a question of law, or that it involves a matter of substantial right, not dependent upon the discretion of the court. The' Surrogate’s Court having exercised its discretion and denied -the application, is there authority in this ; court. to say-that there has been such an abuse -of that discretion as to warrant interference ?. -The only right claimed is that the surrogate had the discretion; not that-there was . any absolute right, and, as pointéd' out, óür authority does not extend ió the correction of discretionary powers in the Surrogate’s Court. The Court of Appeals in Jacobs v. Morange (47 N. Y. 57, 60). quotes Chancellor Kent, with approval, as follows: A subsequent xdecision of a higher court, in "a different case, giving a different exposition of a‘point .of law from the one declared and known when á settlement between parties takes place, cannot have a retrospective effect and overturn, sucli settlement. Every man is to be charged at his peril with a knowledge of the law.”

That is the situation here. The only possible ground for reversing the order now before this court is that a higher court in another case has declared the law differently from what it was supposed to be when the decree of the Surrogate’s Court was made" back in 1901. It is in effect giving a right of appeal years after all right of appeal has expired and after the rights of the respondents had been judicially and conclusively determined. The petitioners are presumed to know the law. The decision Of the Court of Appeals in Matter of Davenport (supra) did not change the law nor declare that the law was void and of no effect, but merely declared what the law was, what- it had been all the time and as it would have been determined in the matter now before us if it had been brought to the attention of the court in proper timé and form. The petitioners having permitted the' time for appeal to go by and awaited an appeal on the part of others in a different case,' it can hardly be said that there has been an abuse of discretion on the part of the Surrogate’s Court in refusing to grant the relief asked for if it be assumed that the court below had the discretionary power. The due enjoyment of property rights and the repose of titles, which that enjoyment requires, renders it necessary that the adjudications of legal tribunals, upon which rights to á large extent rest, should not be lightly disturbed or arbitrarily sét aside and vacated after long lapse of time for errors which should have been discovered and remedied' at the time' of their perpetration. (Matter of Hawley, 100 N. Y. 206, 210.) In the case cited it was held that ‘under'the provisions of section 2481 of the Code of Civil Procedure (fóllbwing a previous case) there is no relief from an erroneous or irregular decree, except upon the ground of fraud, clerical mistake, newly-discovered evidence or other like cause: With these principles in mind it is . difficult, to justify a determination that the petitioners are entitled to a distribution of the funds in the hands of the public administrator, although in this particular case it is probably true that no one would be injured by the reversal. But it is a. bad precedent to establish, contrary, I believe, to, sound .. policy and to the' law of this State and I, therefore, diss’ent from the determination. ■

Order reversed and motion granted as stated in opinión, without costs. . Settle, order on notice.  