
    Matter of the Judicial Settlement of the Account of Gilbert P. Truslow and Ann Augusta Smith, as Executors of the Last Will and Testament of Phebe P. Birch, Deceased.
    
      (Surrogate's Court, Kings County,
    
    
      February, 1902.)
    Judicial Settlement — When Not Delated at the Instance of an Alleged Cbeditob.
    Where executors liave recovered judgment against a woman, now objecting to their accounts, as an alleged creditor, and the judgment has been'paid by her and affirmed by the Appellate Division and no appeal has been taken by her to the Court of Appeals, the Surrogate will not, although the time to take the latter appeal has not expired, postpone the judicial settlement of the executors and permit her to review in his court the validity of the judgment against her.
    The Surrogate has no power to adjudicate that she is entitled to the money she paid or to direct the executors to pay it back to her, and the matter is not within Code C. P., § 2745.
    Objections -by; creditor to tbe settlement of the account of executors.
    Burr, Coombs & Wilson, for executors.
    Richard Krause, for contestant.
    John A. Clarry, special guardian.
   Church, S.

— -The only objections to the settlement of this account proceed from a person claiming to be a creditor.

It .appears that this contestant has been sued by the executors in this State and judgment duly granted in their favor; the contestant, has paid the amount of this judgment to the executors; the judgment has been duly affirmed by the Appellate Division, but no appeal has as yet been taken to the Court of Appeals, although the one-year period in which the contestant could have taken such appeal has not yet elapsed.

The contestant contends that this judgment was a void judgment on the ground that it was based upon a previous judgment obtained by service without the State, and that, therefore, the estate is really indebted to her for this amount of money.

The cases quoted by the contestant, none of them sustain the contention which she makes at the present time, and the suggestion that when a judgment has been obtained between parties in the courts of record in this State, which judgment has been duly affirmed by our Appellate Court, that the parties can review the entire matter in the Sui’rogate’s Court, and that the surrogate has power to hold that such judgment is void is certainly a novel one, and to my mind absolutely without any authority.

There is, therefore, no authority for me to adjudicate that the contestant is entitled to this money, and to direct the executors to pay the same. Nor does the contestant come -within the provisions of section 2745 of the Code of Civil Procedure.

That section was intended to cover the ease of a person who had a claim against the decedent which was in litigation at the time of the settlement of the account. As the settlement of an account of this character is purely a statutory proceeding I find there is no warrant or authority which would permit me to delay the settlement of this account or compel the executors to retain an amount of money sufficient to pay the contestant if the contestant should succeed in her appeal. On the contrary, and particularly should this be the case where it appears that this contestant has two adverse decisions on this matter in the courts of our State, but yet has not availed herself of her privileges by promptly taking an appeal.

The objections of the contestant to the account are, therefore, overruled, and a decree may be entered settling the accotuit, as presented.

Objections overruled and account settled, as presented.  