
    In the Matter of the Estate of Webster Wagner, Deceased. In the Matter of the Judicial Settlement of the Accounts of James D. Taylor, Surviving Executor, etc., of Webster Wagner.
    
      (Court of Appeals,
    
    
      Filed January 14, 1890.)
    
    1. Executors and administrators—Should not be compelled to account WHERE THEY HAVE BEEN RELEASED BY PETITIONER.
    Where an application is made for an order to compel the filing of an. inventory or the rendering of an account and it appears that the applicant can have no right to such order by reason of his interest having been extinguished by settlement and distribution, whether in or out of court, or barred by release or otherwise, and the faatum of the settlement, release or act constituting the bar is put in issue, the surrogate should dismiss the petition.
    3. Same—Discretion of surrogate.
    The provisions of the Code do not deprive the surrogate of the discretion and power to pass upon the right of the petitioner to demand an inventory or account.
    Appeals from judgments of the general term of the supreme court in the third department, which reversed two orders of the surrogate of the county of Montgomery; one of which required a surviving executor of Webster Wagner, deceased, to make and file an inventory and the other of which required him to make and file an account of his proceedings.
    
      U. L. Huston, for app’lt; Matthew Hale and W. H. Van Steenlergh, for resp'ts.
    
      
      
         Affirming 22 N. Y. State Rep., 208.
    
   Gray, J.

The appellant asks us to hold it to be immaterial that an executor may, in answer to petitions to compel him to file an inventory, or to render an account, exhibit to the surrogate the evidence of what apparently is a perfect bar to any such right, forasmuch as that officer, it is urged, under the Code provisions, is without discretion in the premises. The claim is made that the interest of an applicant being sufficiently alleged, or undisputed, the surrogate cannot exercise his judgment in the matter, but is obliged to grant the petitions.

Turning to the facts in the record before us we find them to present this case. Webster Wagner left him surviving a widow and five children; and by his will, after making certain specific gifts of real and personal estate, he gave his whole residuary estate to them, “ to be divided equally between them, share and share alike.” He appointed as his executors, his wife, his son Norman (the late husband of this petitioner), and his son-in-law; all of whom qualified; but of whom only one, Mr. Taylor, the son-in-law and the respondent here, survives. In March, 1885, about three years after the probate of Wagner’s will, and while all the executors were living and acting, the widow and the five children of the deceased united in the execution of an instrument in writing and under their seals, which, after reciting the provisions of the will, acknowledged the receipt by each of the residuary legatees from the executors of the one-sixth part of the real estate and personal property not otherwise specifically devised under the will and acquitted and released the executors of Wagner of all legacies, dues and demands whatsoever under or by virtue of the said will or against the estate. It will be remembered that those executors were, also, three of the persons who took all of the estate between them. The son Norman died in the year following this settlement, intestate, leaving a widow and children. As administratrix of lus estate and the guardian of his children, his widow has made these applications to compel Taylor, the sole surviving executor, to file an inventory and to make an accounting; He opposed her proceedings upon the basis of the instrument which I have referred to. The petititioner denied its execution and alleged fraud in its procurement; but the surrogate, on the ground that he had no discretion in the matter, granted both of her applications.

If what the appellant is here contending for is to be taken as the correct view of the surrogate’s jurisdiction and powers in these matters of administration of estates, then we must not only ignore the spirit for the letter of the statute, but we-should have to regard that officer as exercising an authority which is not moved by his judgment, but may be mechanically set in motion, regardless of the rights of parties. I cannot assent to such a view; when the letter kills.

The general jurisdiction conferred upon the surrogate’s court, in matters relating to the conduct of executors and administrators, would seem meaningless, if not an absurdity, if it did not comprehend the right to decree intelligently and upon equitable principles, and to order their conduct upon principle s of justice and of reason. To the extent that the surrogate is given jurisdiction in the administration of the estates of deceased persons, he acts judicially. His judicial acts are, of course, controlled by the limitations imposed by the provisions of the statute; but where, in matters within his peculiar jurisdiction, it is sought to divest him of all discretion, the language of the statute, to bear such a construction, must be incapa Lie of any other interpretation. It was said by Brown, J., in Seaman v. Duryea, 10 Barb., 523, speaking of the provisions of the ¡Revised Statutes which empowered surrogates to direct and control the conduct of guardians and other trustees, “to direct and control is to govern and command, and the authority to direct and control their conduct must comprehend the power to compel them to do whatever the law requires they should do, or it comprehends nothing.”

Now the power of the surrogate to direct and to govern the conduct of an executor or administrator means to order him to do what is just and lawful, and in a case where it does not appear-either just or reasonable that he should be compelled to do something which is asked of him, I should be strongly inclined to disregard a phrasing or words of the statutory provision which are supposed to give support to the extraordinary claim that, nevertheless, a compulsory decree by the surrogate must issue. We should be unwilling to give so irrational an interpretation to a statutory provision as to divest the judicial officer of the power to exercise his judgment in acting upon an application authorized to be addressed to him in a matter within his special jurisdiction.

It may be conceded that the petitioner is a “ person_ interested in the estate,” within the meaning of the particular sections of the Code, in view of her representative capacities; but the question cannot rest there. The fact that the petitioner has, or represents an interest, which, all things being equal, would authorize the surrogate to act upon the application, ought not legally, or rationally speaking, to be sufficient, where in opposition it is made to appear that the interest in the estate has been extinguished by a satisfaction of the legatee’s demand. That view accords better with the reason of the thing, for it is one which refuses to sanction a proceeding apparently useless, and certainly so, if the objection of the executor to the application is well founded. Here the objection is the instrument which evidences a division of the estate and a receipt by each person entitled of his or her full share. Now, as the petitioner stands in the shoes of her intestate, and can have no other, or greater interest, or better rights than he had, we should suppose that, until the instrument was adjudged invalid, it ought to bar any proceedings to compel further administrative acts by the personal representatives of Webster Wagner. But reliance is placed on the provisions of the Code of Civil Procedure in support of this argument, which denies to the surrogate any exercise of judgment in the matter, provided the applicant for his order swears to an interest. Section 2715 of the Code relates to the case of a creditor or person interested in the estate ” applying for an inventory, and it provides that “if the surrogate is satisfied that the executor or Administrator is in default, he must make an order requiring the delinquent to return the inventory, or a further inventory, or in ■default thereof to show cause * * * why he should not be attached.” Sections 2726 and 2727 relate to the case of “ a creditor or a person interested in the estate” applying for an accounting. and the provision is that if the executor or administrator fails “ to show good cause to the contrary, * * * an order must be made directing him to account, etc.”

Then subdivision 11 of § 2514 defines the expression “person interested,” and provides that where such a person applies for an inventory, an account, etc., “ an allegation of his interest duly verified suffices, although his interest is disputed, unless he has been excluded by a judgment, decree or other final determination.” What is there in the language of these sections which makes it compulsory upon the surrogate to grant the petition of a person prima facie interested and deprives him of all discretion, where in opposition it appears in effect that the estate has been accounted for and distributed ? These obviously are provisions made for cases of unsettled estates; cases where there is an unfulfilled legal duty resting upon the executor or administrator.

But where, as in the case before us, the executor shows a settlement of the estate and its distribution by and between the persons entitled to share in it, I think he has shown himself to be without further.duty to perform. As to an inventory, he cannot be “ in default,” nor “ a delinquent," in the eye of the law, if the estate has been in fact accounted for to and distributed among the legatees; nor, with respect to an application for an accounting, does he fail “ to show good cause to the contrary,” when those facts are made to appear. Nor does the fact that the accounting and distribution were made out of court affect the question; for there is no policy of the law to be subserved either way. The Code provisions were intended to facilitate the administration of estates, by furnishing a machinery for that purpose; which is equally available to the faithful and diligent executor, as it is to the creditor, or any person interested in the estate, against a recalcitrant and unfaithful representative.

All that is meant by the subdivision of § 2514, referred to, is that the executor or administrator cannot put off, or avoid the performance of an unfulfilled legal duty by disputing the sufficiency of the interest of the petitioner; and it has reference to cases where a person interested “ may ” apply. The petitioner here may be “ a person interested,” within the definition of the Code, and still not be entitled as matter of right to the orders she asks for, while it appears that the estate has been distributed, and, on the face of the matter, there would be nothing the executor co.uld, or should do. The Code provisions in question do not deprive the surrogate of the discretion and power to pass upon the right of the petitioner to demand an inventory, or account, and that is the first question for him to determine when the matter of such an application comes before him. It is his duty then to deny the petition, if it should appear that the petitioner is not, on the face of the proceedings, entitled to the order, and he should not permit the executor to be uselessly harassed.

I have examined the cases to which our attention is called, and I find none which embarrass or conflict with our conclusions. The principle of the decision in some of them recognizes a discretionary right in the surrogate to refrain from exercising the power to require an inventory and account. Such is the case of Thomson v. Thomson, 1 Bradf., 24; where is also pointed out the distinction between the jurisdiction of the English ecclesiastical courts, whose decisions were cited, and the more ample jurisdiction of our surrogates’ courts. No reported case is referred to, and I find none, which holds that on such facts as appeared here, showing a settlement and distribution out of court between all the necessary parties, evidenced by their writings under seal, the executor would, or should be compelled to go through the farce of filing an inventory and rendering an account; which would lead to nothing and be utterly useless, while the writings stood. The law is reasonable in its demands, and no unreasonable intendment should be read in a statute by which an injustice may be worked, or an absurd result brought about.

The question here is not whether the petitioner is a person who might, ordinarily, insist upon the granting of such petitions ; but whether, conceding that as a general proposition, she has the right to set the machinery of the surrogate’s court in motion, in the face of the apparent evidence of a complete settlement between the executors and all persons interested.

Whatever standing the petitioner has, she obtains through the transmission of rights and interests from the deceased legatee, and, if this paper represents a genuine transaction, is it conceivable that the deceased would have been heard upon such an application if made by him ? He was -executor as well as beneficiary, and could he so dissociate himself in the one capacity from himself in the other as to entitle himself to be heard by the surrogate to complain-.of fraud or other causes to invalidate the settlement ?■ Evidently that would be absurd. But if impossible for him, why should the difficulty cease to exist when the applicant stands before the surrogate as his administratrix, or as the guardian of his children? It has not disappeared by his death; nor does that event affect the validity of his acts, and the surrogate ought to refrain, in the face of such facts, from exercising his authority and remit the discussion of the questions to the courts having jurisdiction to bear them.

In Gratacap v. Phyfe, 1 Barb. Ch., 485, Chancellor Walworth held that in an case of an application by or in behalf of a person claiming to be interested in the estate as creditor, legatee or next of kin of the decedent, the right of the applicant to call for an account may be questioned and that “ the party cited may show in answer to the application that the right of the applicant to an account is barred by a release or otherwise.” And the inference is fairly made from the language of the opinion in Bevan v. Cooper, 72 N. Y., 328, that this court thought the surrogate should refuse to entertain a proceeding when the question of the validity of a release arises therein, which is beyond his powers to try, and should leave the determination to be first made by the appropriate court.

I think we should hold it as the true exposition of the law in such cases, that where an application is made to the surrogate for an order compelling the executor or administrator to file an inventory, or to render an account, and it appears in answer to it that the applicant can have no right to such an order by reason of his interest having been satisfied and extinguished by a settlement and distribution, whether in or out of court, or barred by a release, or otherwise, and the factum of a settlement, or of a release, or any act constituting the bar, is put in issue by the reply of the applicant, the surrogate should dismiss the petition and remit the applicant to his proceeding in a court having general equity powers to try out such an issue. That power the surrogate does not possess. His powers and duties are prescribed by the Code provisions and his jurisdiction is special and limited to the subjects described by the statute. That general jurisdiction which comprehends such a power as to nullify and set aside the deeds of parties for fraud, is not comprehended in the express grant of powers; nor is it incidental to the particular authority conferred. The procedure in surrogate’s courts formerly followed the course of the common law and now is governed by the system created by the provisions of the Code of Civil Procedure. Neither before did they possess, nor do they now possess the general powers of a court of equity. Bevan v. Cooper, 72 N. Y., 317; Stilwell v. Carpenter, 59 id., 414.

I think the general term were right in holding that no inventory should be required of this surviving executor as to the personal property, which, with the farm on which it was, was given by Webster Wagner to his widow for her life by the second clause of his will. She was an executrix of the will and presumably received and enjoyed the use of this personal properly. The executors of her will might properly enough be called upon to account for such property by this petitioner as administratrix of" the deceased remainderman, or as guardian of his" children; but it would seem monstrous under all the circumstances of this case that the surviving executor of Webster Wagner should be held to any accountability in that respect. Several years after the probate of the will, the estate was finally settled up between all of the parties and the executors acquitted of all responsibility for any demands under the will. In other words, the parties, dealing in fact with themselves, arranged and concluded a settlement and distribution to their own satisfaction and that I think ended the matter.

I think the general term were right in wholly reversing the orders of the surrogate, and that their judgment and order of reversal should be affirmed, with costs to the respondent.

All concur, Andrews, J., in result, except Earl, J., not voting.  