
    Matter of the Application of J. Townsend Lansing, as Executor of the Last Will and Testament of J. DePeyster Douw, Deceased, for the Final Judicial Settlement of his Accounts.
    
      (Surrogate’s Court, Dutchess County,
    
    
      February, 1902.)
    Exeoutok — Not Entitled to a Judicial Settlement Until One Yea» Aeter Letters Issued.
    Although an executor has duly advertised for creditors he eaunot procure a judicial settlement of his accounts until one year has elapsed from the issue to him of letters testamentary.
    ApplicatioN by an executor for the issuance of a citation requiring the parties interested to attend! the final judicial settlement of his accounts within one year from the date of letters, basing his application upon subdivision 2 of section 2728, Code of Civil Procedure, proof being made of hie compliance with the requirements of that subdivision, as to publication of notice to present claims.
    
      John De Witt Peltz, for petitioner.
    No other appearance.
   Hoyseadt, S.

— J. DePeyster Douw died January 30, 1901, leaving a will which was admitted to probate in .this court and letters testamentary were issued to J. Townsend Lansing, the executor, April 30, 1901.

The executor has made application for the issuance of a citation requiring the parties intei’ested to attend the final judicial settlement of his accounts within one -year from the date of letters, basing his application upon subdivision 2 of section 2728 of the Code of Civil Procedure, proof being made of his compliance with the requirements of that.subdivision as to the publication of notice to present claims.

To grant this application would, in my opinion, be subversive of the general principles and apparent contemplation of the statutes governing- the jurisdiction and control of estates passing by wills. If this statute, which establishes no fixed, determinate period like the first subdivision of section 2728, should ■be construed as the right of the executor to. the final judicial settlement of his accounts six months from the issuance of letters, provided he had advertised for claims, then there is need of legislation to remove its conflict with other statutes, ■which in positive terms require or contemplate that the estate of a testate shall remain within the jurisdiction of the surrogate for one year. This question has been considered in Matter of Bronner, 30 Misc. Rep. 31, where all the parties interested were adults, and consented to the entry of the decree. Surrogate Fitzgerald -held that this made no difference and denied the application.

In Matter of Lawson, 36 Misc. Rep. 96, it was held that an accounting in a testate estate within one year could not be allowed, irrespective of other questions arising on the application.

Both of these applications were denied upon the general principles that testate estates should not be distributed, the representative discharged and the right to institute proceedings to revote probate within one year, and the provision that legacies shall not be paid within one year, could not be annulled by the exercise of no more than a discretionary authority of the executor.

The amendment to section 2728 in 1895 and the amendment to section 2743 in 1898 have so evidently been made without ■regard to the other provisions referred to that in my judgment it is the wiser policy to disallow applications for final settlement of the accounts of executors within one year while this confusion in the law exists.

The application is denied.

Application denied.  