
    In the Matter of the Estate of J. George Laffargue, Deceased. Edward Herrmann, as Executor, etc., of J. George Laffargue, Deceased, Appellant; Laura Blakeney, Respondent.
    First Department,
    January 20, 1911.
    Decedent’s estate — accounting — survival of persons perishing in ■ common disaster — determination of question by surrogate.
    A finding by the surrogate that a wife who perished with her husband in- a common disaster survived him, made in a proceeding to compel a judicial settlement of the accounts of his executor, is not binding upon parties not cited nor heard.
    Moreover, the surrogate should not formally determine such question of fact, and his finding thereon should be stricken from an order directing the executors to account. It is proper, however, for the surrogate to take evidence on that question in order to satisfy himself that the person seeking to compel the execu'tor'to account, being a stepdaughter of the husband and a daughter of , his wife, is prima facie a person interested in the estate by reason of the fact that the mother survived the testator, so as to be entitled to compel an accounting under the Code of Civil Procedure.
    Appeal by Edward Herrmann, as executor, etc., of J. George Laffargue, deceased, from an order of the Surrogate’s Court of the county of New York, bearing date tlie 19th day of July, 1910, and entered in said Surrogate’s Court, affirming the first finding of fact made by a referee appointed herein, and directing appellant as such .executor to render and file his accounts in.the office of the clerk of the court within twenty days after the date of the order and to attend before the surrogate from time to time for. the purpose of settling his accounts, with notice of an- intention to bring up for review an order theretofore entered bearing date the 6tlf day of August, 1909, appointing the referee, and an order bearing date the 18th day of April, 1910, denying the appellant’s motion to reopen the hearing before the referee for the purpose of having further testimony taken.
    
      George D. Zahm, for the appellant.
    
      Edwin T. Taliaferro, for the respondent.
   Laughlin, J.:

This is not a petition for the payment of a legacy or other pecuniary provision under a will or a distributive share made pursuant to the provisions of section 2722 of the Code of Civil Procedure, which must be dismissed without prejudice to an action or an accounting in behalf of the petitioner where the executor or administrator files an answer in writing, duly verified, denying the validity or legality of the petitioner’s claim and setting forth facts which show that it is doubtful whether it is valid and legal. The petition evidently was presented pursuant to the provisions of section 2727 of the Code of Civil Procedure, on the theory that the petitioner is “ a person interested in the estate or fund” referred to in the petition, and for the purpose of having the Surrogate’s Court exercise the power conferred by section 2726 of the Code of Civil Procedure to compel a judicial settlement of the accounts of the executor.

The petition is presented by Laura Blalceney, whose maiden name was Kimmelman, and who evidently was the stepdaughter of appellant’s testator, both individually and as executrix of the last will and testament of her mother, Henrietta Laffargue, deceased,-and she presents it in behalf of her infant sister, Viola Kimmelman, of whom she is guardian as well. It appears that on the 18th day of August, 1906, said J. George and Henrietta Laffargue, who were husband and wife, died at Allaire, H. J., from injuries received by a collision on that day between a train on the Pennsylvania railroad and an automobile in which they were riding. They each left a last will and testament. The husband’s will was duly admitted to probate in the Surrogate’s Court of the county of New York on the 4th day of Hovember, 1906. He bequeathed all moneys collected on policies of insurance on his life to Iiis wife. He left two sons, and he directed his executors, in their discretion, to carry on his copartnership business, or to sell his interest therein, and from the income thereof to apply a sufficient sum for the maintenance and support of his son Gerard until he should become of age, at which time he directed them to divide his personal estate, other than the sum realized on insurance policies, and, without specifying into how many shares it should be divided, he directed that “ one of such shares-” shall be paid to his son Gerard at his majority, and another share at that time to his son Henry Andre, and . .he .gave, devised and bequeathed to his wife “ two shares of my estate whether real or personal to be paid to her when my said son Gerard Laffargue shall arrive at the age of twenty-one years.” The petition shows that the petitioner and her said sister 'were the only children, heirs and legatees of said Henrietta Laffargue whose will was duly admitted to probate in the Surrogate’s Court in the county of New York on the 1st day of November, 1906. The petition further shows that the appellant as such executor has collected $10,000 accident insurance on the life of his testator, and the sum of $2,000 life insurance, and the sum of $9,000 on the sale of stock in the Laffargue Piano Company, belonging to his testator, for all of which he is accountable as executor, and that more than two years have elapsed, since his appointment and qualification as executor, and that he has not accounted.

On the petition a citation was duly issued to the executor, who filed an answer setting forth in substance that the husband and wife died at the same time from the injuries received by a collision, and he, therefore, denied that the wife of the testator survived him. Thereupon the surrogate, on motion of the attorney for the petitioner, appointed a referee to take, proof and report the evidence, with his opinion thereon, as to whether said Henrietta Laffargue survived her husband, and the interest of the petitioner and of her sis- . ter in the estate of ■ the testator, and reserved all other questions until the coming in of the report. The referee thereafter filed a report containing certain findings of fact, the first of which is that the wife survived her husband. Thereupon the surrogate made an . order adopting the first finding of' the referee and directing the executor to account.

Tlie other parties interested in the estate-have neither been cited nor heard, and, therefore, this finding cannot bind them. We are of opinion, however, that it was unnecessary, for the surrogate to thus formally, determine the question of fact, and, therefore, the finding should be stricken from the order. It was entirely proper for the learned surrogate to take evidence, through a reference or otherwise, to satisfy him that the claim of the petitioner that her - testatrix survived the testator was probably well founded and that, therefore, there was reason to believe that she had an interest in the estate which would, enable her to institute the proceeding to the end that her rights might be protected and ultimately adjudicated when all parties in interest may.be heard. ■ That is the rule adopted by this court in Matter of St. John (104 App. Div. 460, 462), where the person, claiming an interest through an alleged survivor-ship of one of several persons meeting their death- in a common casualty, applied to be admitted as a party to the proceedings on the accounting of the executor .of one of the parties so dying. The statute makes no distinction between the right of a party to institute a proceeding for the judicial settlement of the accounts of an executor and to intervene therein, and, therefore, that rule is applicable here. (Code Civ. Proc. §§ 2727, 2728. See, also, Matter of St. John, supra.)

It follows, therefore, that the order should be modified by striking out the provision thereof by which the first finding of the referee is adopted and found, and substituting in lieu thereof a recital that the petitioner has presented prima facie evidence that she is interested in the estate and is entitled to institute the proceeding, and as thus modified affirmed, without costs.

Ingraham, P. J., Clarke, Scott and Miller, JJ., Concurred.

Order modified as stated in. opinion, and as modified affirmed, without costs. Settle order on notice.  