
    In the Matter of the Final Judicial Settlement of Bernard McGorray, Ex’r, App’lt, Guerdon McGorray and Grey W. McGorray, Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Executors and administrators—Accounting—Opening decree.
    After the filing of the executor’s accounts, -but before the entry of the decree settling them and directing payment of the balance on hand into the county treasury, certain parties presented a claim to all the personal estate under a bill of sale made by the testator, and thereafter said parties recovered judgment on said claim against the executor. Reid, that the surrogate had power, under § 3481 of the Code, under these circumstances, to open the decree.
    Appeal by Bernard McGorray, the executor of the last will and testament of John A. McGorray, deceased, from an order of the surrogate’s court, Monroe county, made February 17, 1892, denying his motion to open the final decree made by that court in these proceedings.
    
      James S. Garlock, for app’lt; W. A. Sutherland, for resp’ts, who are the minor children of the deceased.
   Macomber, J.

The appellant, the executor of the last will of John A. McGorray, had, sometime prior to presenting this petition, rendered his account to the surrogate of Monroe county, showing that he had received the sum of $4,947.41, and after deducting expenses, payments, etc., there remained in his hands the sum for distribution, $3,251.92. The surrogate, upon settling the accounts in accordance with the statement made by the executor, directed that the sum in the executor’s hands, less his fees, should be turned into the county treasury for the benefit of the respondents, the minor children of the deceased.

. This payment into- the county treasury was not made by the executor, But shortly after the filing of the accounts, and before the entry of the decree thereon, he was apprised of an outstanding claim by the presentation to him of a bill of sale of all the personal property of the deceased with which he had charged himself in his accounts, and which it was claimed was executed in his lifetime by the deceased to the claimants, Catharine and Mary J. McGorray. An action was in fact begun by Catherine and Mary J. McGorray in the supreme court against this executor for such property before the final accounting was completed. That action resulted, in January, 1892, in a judgment in favor of Catherine and Mary J. McGorray against the executor. Thereupon this petition was filed for a rehearing of the case before the surrogate, and for relief from the decree heretofore entered in this matter.

The learned surrogate, while denying the motion, permitted it to be renewed. Upon what ground this part of the order was made we are unable to say, for there does not seem to have been any defect in the moving-papers or any omissions which might be supplied by additional papers. But this part of the order. shows quite clearly that the surrogate had not, as a matter of discretion, refused to open the decree. The power of the surrogate in the premises, under subd. 6 of § 2481 of the Code of Civ. Pro., is undoubted. By this statute he is empowered to open, vacate or modify a decree of his court, to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical errors, or other sufficient cause. There is an intimation in the brief of the learned counsel for the respondents that' the action in the supreme court was a, collusive one, and that for such reason the motion should have been denied. Such inquiry would, indeed, be proper upon the hearing before the surrogate upon the merits "r and if it is shown that such suit were collusive and fraudulent, it would naturally follow that the application to open the former decree would be denied. But this matter must be determined as-a question of fact from the evidence adduced upon the re-hearing, and not as a mere matter of inference to be drawn by the course of the proceedings animadverted upon by counsel.

On the whole it appears to us that the re-hearing sought for ought to be had and, consequently, that the decree appealed front should be reversed.

Decree appealed from reversed, with costs of this appeal to abide the final award of costs.

Dwight, P. J., and Lewis, J., concur.  