
    
      In re Baity’s Estate.
    
      (Surrogate's Court, Westchester County.
    
    January, 1891.)
    Administrators—Accounting—Application to Set Aside.
    In a proceeding by the wife and guardian of a lunatic to set aside an accounting of administrators with the will annexed, it appeared that, prior to the appointment of such administrators, the interest of the ward, who was a devisee of the will, was sold on executions against him, and purchased by one of the administrators; that such devisee afterwards became insane; that these facts were set forth in the petition for accounting, and recited in the decree; and that the lunatic was represented in the accounting by a special guardian. Held, that the application on the ground that there was no proof produced showing the judicial sale, and that the administrators withheld important facts touching the rights of the lunatic, and made unlawful claims, will be denied when the petition does not deny the sale and purchase, or disclose what facts were withheld and ualawful claims were made.
    Application by Maria Baity, wife of John R. Baity, a lunatic, to set aside an accounting of Eliza Gott and John H. Moran, as administrators with the will annexed of the estate of William Baity, deceased. Application denied.
    John R. Baity was a devisee of the will of decedent, and was adjudged insane in August, 1880. Prior thereto his entire interest in the estate of decedent was sold on judgments against him, and purchased by Eliza Gott. In 1887 she and Moran were appointed as administrators of the estate with the will annexed, and in March, 1888, they rendered an account, in which the judicial sale to Eliza Gott was set forth. A decree was entered reciting the sale, and awarding her the residue of the estate, except a fund held in trust. The petition to set aside the decree alleges that no proof of the sale to Eliza Gott was offered;- that the administrators, in their accounting, withheld important facts and statements touching the rights and interests of said lunatic, and made unlawful claims.
    
      A. B. Tappen, for the motion. Oivide Dupre, opposed.
   Coffin, S.

Although not distinctly alleged in the petition, it may be gathered from the facts stated therein that it is sought to set aside the decree upon the ground of fraud. There can be no doubt that the lunatic was duly cited to attend the accounting, and that he was duly represented by special guardian. Indeed, the fact is admitted. The petitioner’s whole case seems to rest chiefly on the fact that no proof was produced to the court showing the judicial sale of John R. Baity’s interest, and the purchase thereof by Mrs. Gott. It will be observed that the petitioner nowhere denies such sale and purchase, and does not, therefore, attempt to establish any fraud in that respect. Nor does she allege any newiy-diseovered evidence, or clerical error in the proceeding. It is true that the petition alleges that on the accounting the administrators withheld from the court important facts and statements touching the rights and interests of the lunatic, and made unlawful claims. What facts and statements were withheld? What were the unlawful claims made by them? The petition fails to disclose them,—to tell us what those facts were, or to show how any claims made were unlawful. Had it been shown that the lunatic’s interest, claimed to have been sold under judgments and purchased by Mrs. Gott six years before he was adjudged insane, and long before she became administratrix, bad never been so sold or purchased, a different question would have been presented. Then the decree could have been challenged as fraudulent. If it were true that there was no proof, or insufficient proof, of the claim of Mrs. Gott to the share of the lunatic, that fact would not render the proceeding obnoxious to the charge of fraud, clerical error, or other like cause, for which the surrogate, under the provisions of subdivision 6 of section 2481 of the Code, is authorized to open or set aside the decree. The only remedy would be an appeal. Singer v. Hawley, 3 Dem. Sur. 571, affirmed by court of appeals, 100 N. Y. 206, 3 N. E. Rep. 68. But there was proof; whether sufficient or not to warrant the decree is immaterial. The sale of John R. Baity’s interest under legal proceedings, and the purchase thereof, were alleged and set forth, both in the,verified petition and also in the verified account, and to which, thus challenged, no objection was interposed by the special guardian, or by any other person. This statement was properly made in the account, and, uncontradicted, was sufficient evidence on which to base the decree. Dayton says, (Practice, 508:) “The executor or administrator may also include in the account such statements of any facts or circumstances which may have attended the administration as he may deem important to a correct understanding of the manner in which he may have performed the duties of bis trust, or to a just settlement of the affairs of the estate. ” See, also, Redf. Pr. 759, 760. The petition and account of proceedings are in the nature of pleadings, and, when properly verified, are, in general, as to the facts stated, unless questioned, to be regarded as true. The petitioner herein, the wife of the lunatic, appears to have no legal interest in the estate which would render her a proper party to the proceeding. Whether validity is rendered to the application by the fact that the special guardian joins in it has not received much consideration. It has been deemed best to decide the matter upon its merits. An order will be entered denying the application.  