
    Catherine L. Meeks, as Executrix, etc., of Joseph W. Meeks, Jr., Deceased, Plaintiff, v. Edwin B. Meeks, Individually and as Executor, etc., of Joseph W. Meeks, Sr., Deceased, Defendant.
    (Supreme Court, Kings Special Term,
    October, 1906.)
    Insane persons — Actions — Leave to sue lunatic — Necessity. •Executors and administrators — Accounting and settlement — Procedure to obtain accounting — Action for accounting — Eetention of cause already in Supreme Court.
    Where the citation to attend the judicial settlement of the accounts of an executor and testamentary trustee in which an'-incompetent- is interested was duly served upon him and upon his committee appointed by the Supreme Court, and the committee appeared in the proceeding by counsel, the decree entered therein is valid although permission to make the incompetent a party to the accounting and leave to serve him were not obtained from the Supreme Court.
    Where the executrix of a person judicially declared to be an incompetent, thirteen years after the entry of a decree judicially settling the accounts of the executor and trustee of his father’s estate, to which proceeding the incompetent was made a party, his committee appearing and answering therein, brings an action in the Supreme Court against said executor and trustee to recover income bequeathed to her testator by defendant’s testator, upon an allegation that defendant wrongfully retained and applied said income in payment of her testator’s alleged invalid debt to his father, and, aside from a prayer for relief against said decree, the complaint asks for an accounting by defendant as executor and trustee since his accounting in the Surrogate’s Court, this court will decline to exercise its jurisdiction and will dismiss the complaint upon the ground that full relief may be had in the Surrogate’s Court.
    ' Action against an executor and testamentary trustee for an accounting. The opinion states the case.
    
      Ketcham & Owens (James M. Gray, of counsel), for plaintiff.
    Lewis L. Delafield and Eugene D. Hawkins, for defendant.
   Kelly, J.

The plaintiff sues to obtain an accounting by the defendant as executor and trustee under the will of Joseph W. Meeks, Sr. She alleges that there is money due the estate which she represents from the estate represented by the defendant, being a part of the income bequeathed to Meeks, Jr., in the will of his father, the defendant’s testator. She claims that the defendant has wrongfully retained part of this income, applying it to payment of an existing debt from the son to the father,' the validity of which debt she wishes to contest. And, it appearing that the defendant has accounted in the Surrogate’s Court of Suffolk county from time to time and that, in 1893, a decree was entered in that court judicially settling the defendant’s accounts as executor and trustee, she asks that the decree be set aside because, she alleges, her testator, Meeks, Jr., was not properly before the court. She alleges that Meeks, Ji\, was adjudged incompetent, and that the late Wilmot M. Smith, afterward a justice of this court, was appointed committee of his person and property. And, although the citation in the accounting proceeding was served upon the incompetent and upon his committee and although the committee appeared and answered in the proceeding, the plaintiff avers that the Surrogate’s Court was without jurisdiction because, she claims, permission should have been obtained from the Supreme Court to make the incompetent a party to the accounting proceeding as well as to serve him with the citation. And plaintiff also asks that certain consents and receipts filed in the accounting proceeding be declared void. Aside from the relief prayed for against the decree already entered in the Surrogate’s Court, plaintiff asks for an accounting by the defendant as executor and trustee since the date of the last account filed in the Surrogate’s Court. o

This suit coming on for trial, the plaintiff’s counsel opening and offering in evidence the surrogate’s decree of February 27, 1893, the defendant executor moves upon the opening, which is a part of the record and the proof, that the complaint be dismissed, on the ground that the matters involved are properly cognizable in the Surrogate’s Court, and that, while this court has jurisdiction, it should not exercise jurisdiction on the facts as they now appear.

■ Examination of the briefs presented by the parties convinces me that the views expressed on the trial are correct. I think the Surrogate’s Court can afford the plaintiff full relief, and that the Surrogate’s Court is, the proper tribunal to pass upon the plaintiff’s grievances. The' limi-' tations upon the powers of the Surrogate’s Court, which existed for many years and which prevented that court from giving complete and perfect relief in the cases cited by the learned counsel for the plaintiff,- have been largely removed. That court now has, by express provision of the statute, the authority to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred (Code Civ. Pro., § 2481, subd. 11) ; and, even prior to the Code, the surrogate had power to vacate decrees on account of fraud or irregularity. Matter of Henderson, 33 App. Div. 545, citing Sipperley v. Bacus, 24 N. Y. 46; Brick’s Estate, 15 Abb. Pr. 12; Dobke v. McClaran, 41 Barb. 491; Campbell v. Thatcher, 54 id. 382. It would seem that the question whether an executor and trustee has paid over the whole or only part of a legacy claimed by a beneficiary was clearly within the power of the surrogate to- determine; and, if there are irregularities or fraud at the base of a decree, the surrogate can apply the remedy. I think the Surrogate’s Court is the proper tribunal in which to take the defendant’s account since the period covered by the decree of 1893. The plaintiff,- as a person interested in the execution of the trust (Code Civ. Pro., § 25-14, subd. 11), can institute a proceeding in the Surrogate’s Court to compel the accounting. Id., § 2808.

While I think the question of the regularity of the decree of 1893 should be presented to the Surrogate’s Court, I also think the objection 'urged against the ■jurisdiction' of that court is not sound. Where a party has been declared an incompetent, and this court has appointed a committee of his person and estate, and an accounting proceeding is brought in the Surrogate’s Court relative to property in which the incompetent is interested, as well as others, I do not think it is necessary to apply to this court for permission to serve the citation. The propriety of the accounting proceeding is determined by statute. The incompetent is concededly a necessary party, and his rights are under the protection of the court through the committee. Where the citation was duly served on the incompetent and on the committee, and where the committee appeared by counsel, I think the decree is valid. Even though, the permission to sue was a desirable preliminary, the failure to obtain'it was merely an irregularity which could be cured or waived at any stage of the proceeding. Le Fevre v. Matthews, 39 App. Div. 232. Even in cases where the process was served upon the incompetent and judgment was obtained without the knowledge of the committee, the proceedings have been sustained, the court holding that they are not only binding but that “ they are not even irregular or erroneous ” (Crippen v. Culver, 13 Barb. 424; Sternberg v. Schoolcraft, 2 id. 153); and there is nothing in the case presented here, where it appears that the rights of the incompetent were cared for by his committee, an eminent lawyer, represented by learned counsel, which calls for action by this court after the lapse of thirteen years to interfere with the surrogate’s decree.

I conclude, therefore, that this case presents the same situation as in Borrowe v. Corbin, 31 App. Div. 172; affd., 165 N. Y. 634. In that case Mr. Justice Joseph F. Daly refused to proceed with the case in equity and dismissed the complaint, holding that the Surrogate’s Court had jurisdiction in the premises and that, while this court had jurisdiction, it would, on. the facts presented, decliné to exercise it, remitting the parties to the surrogate. It follows that the complaint should be dismissed.

Complaint dismissed.  