
    In the Matter of the Judicial Settlement of the Accounts of Frederic Grant, as Temporary Administrator of James Grant, Deceased, Respondent. Thomas H. O’Connor, Appellant; Annie Grant and Others, Respondents.
    First Department,
    December 6, 1907.
    Executors and administrators — accounts of temporary administrator — right of substituted surety to show date of devastavit.
    A substituted surety of a temporary administrator charged with devastavit as to a stock exchange seat claimed to belong to the estate, is entitled to have an order of reference of that issue so drawn as to allow him to prove that the devastavit took place prior to the time he became surety.
    When objections to the accounts of such administrator were withdrawn before the discharge of the prior surety, the substituted surety is not entitled to have the account opened as to those items.
    Appeal by Thomas II. O’Connor, the surety on the bond of Frederic Grant as temporary administrator,, etc., from a decree of the Sdrrogate’s Court of the county- of New York, entered in said' Surrogate’s Court on the 22d day of May, 1907, denying the appellant’s motion to refer back the account of said temporary administrator to a referee to whom it was originally referred.
    
      Richard O' Gorman, for the appellant.
    
      Arthur L. Marvin, for the respondents.
   McLaughlin, J.:

James Grant died on the 22d of April, 1895, leaving a last will and testament, which, was on the 2-9th of November of the same year admitted to probate and letters testamentary issued to the executors therein named. A contest was had over the admission of the will to probate, pending which temporary letters of administration were issued to Frederic Grant, a brother of the intestate, he having given a bond with the American Surety Company as surety. On December 7, 1895, the temporary administrator tiled his accounts in the Surrogate’s Court, but which did not include a seat in the Hew York Stock Exchange which stood in the name of the deceased and which it was claimed was an asset of his estate. Objection was made to his accounts upon this as well as upon other grounds. About this time the American Surety Company applied to be released from its bond. The objections made to the accounts were referred to a referee, blit all of them seem to. have been then or thereafter withdrawn except the. one relating to the Stock Exchange seat. While the proceeding was pending before the referee, and in Hovember, 1896, something over a year after the accounts wero filed, the American Surety Company was released and a new bond given in the sum of $20,000. One of the sureties' upon the new bond was this appellant. He was'not nominally a party to the proceeding before the referee and had no notice thereof except so far as the same may be inferred from the fact that he took the place of the American Surety' Company. The referee, on the 12th of April, 1897, filed his report, in which he held that the temporary administrator should be charged with the value of the seat on the Stock Exchange, which he fixed at $18,000. His report, however, was not confirmed, the surrogate denying a motion for that purpose and directing that the matter be sent back to the referee “ for the purpose of taking such proper and legal- testimony as may be offered in support of the temporary administrator’s claim that the seat in. the Hew York Stock Exchange, for which a certificate stood in the name of the testator at the time of his death, is in fact a firm and not an individual asset.” This order was made in April, 1898, and thereafter no proceédings were taken before the referee until March, 1906, when the attorney for the contestant in the Surrogate’s Court served a notice of hearing. In July, 1906, the appellant obtained permission from the Surrogate’s Court to intervene as a party to the proceeding, and the following October an attempt was made to bring on the hearing before the referee, when the appellant obtained a stay and moved that the order referring back the accounts to the referee-be amended so as to admit evidence not only in regard to the Stock Exchange seat, -but also as to any matter which the parties might think material upon any of the issues raised by the objections to the accounts. The motion was denied, and it is from this order that the present appeal is taken.

I think the order was properly denied as to all matters except those relating to the Stock Exchange seat, the sale and disposition of that, and the proceeds derived therefrom. The appellant being one of the sureties upon the bond of the temporary administrator—• if there has been a devastavit of the estate, so far as the Stock Exchange seat is concerned, or the proceeds derived from the sale of the same — ought to be afforded an opportunity of proving that it took place prior to the time he became-a surety; otherwise he might be charged with such-loss, when in fact- it occurred prior to the time he became a surety. To this extent the order appealed from should be modified.

As to the other objections made to the accounts, and which were withdrawn, the order is right. The accounts of the temporary administrator were filed nearly twelve years ago and the appellant became a surety nearly ten years ago. Ho facts are stated which would have justified the surrogate in opening up the entire accounts when the objections which had been originally filed had been .withdrawn..

The order appealed from, therefore, should be modified as stated' in this opinion, and as thus modified affirmed, without costs to either party.

Patterson, P. J., Ingraham, Houghton and Scott, JJ., concurred.

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