
    In the Matter of the Accounting of Duncan M. Robertson, as Executor, etc., of Leicester Burnett, Deceased, Appellant. Adelma M. Smith and Georgia A. Crane, Respondents.
    
      Surrogate—-power of, to amend Ms decree — duty of an executor, who 7ias overpaid certain legateees, to the other legatees.
    
    A surrogate has power, under subdivision 6 of section 2481 of the Code of Civil Procedure, to amend a decree made by him by inserting therein a provision contained in his decision but omitted from the decree by inadvertence or mistake.
    An executor of an estate, the assets of which are not sufficient to pay in full all the legacies, which are of equal priority, who, in good faith, pays some of the legatees more than their just proportion of.the assets, is chargeable with the money which he should have on hand, applicable to the payment of the . prorata share of the remaining legatees, and cannot require them to wait therefor until after he has collected the overpayments.
    Appeal by Duncan M. Robertson, as executor, etc., of Leicester Burnett, deceased, from an order, of the Surrogate’s Court of St.. Lawrence- county, dated the 31st day of July, 1899, amendatory of a decree entered in said court on the 17th day of November, 1898, and as amended by an order entered in said court on the 18th day of December, 1899, and also from said decree as amended.
    Duncan M. Robertson, the appellant, is the sole executor of Leicester Burnett, who died in 1890, leaving a last -will and testament, in which were given certain general legacies. By the inventory the estate was apparently sufficient to pay all the legacies. From time to time, upon the demand of certain legatees, the legacies were paid in full, except two legacies, one to Adelma M. Smith and the other to Georgia A. Crane. Thereafter, and in 1896, the executor petitioned for a judicial settlement of his accounts. Upon the accounting the surrogate made and .signed a decision containing findings of fact and of law. In that decision it was found that the estate was sufficient to pay only sixty-five or sixty-six per cent of the amount of such legaciesthat Adelma M. Smith was entitled to receive upon. her legacy, upon February 13, 1891, the sum of $1,970.40; that certain payments had been made thereupon, so that at the time of the accounting there was still due to her. on account of her legacy the sum of $1,356.42, with interest from October 1, 1898; that Georgia A. Orane was entitled to receive February 13,-1898, the sum of $1,9'70.40; that certain payments had been made thereupon, so that at the time of the accounting there was still due to her on account of her legacy the sum of $1,385.13, with interest thereon from October 1, 1898; that the executor, believing the securities held by said estate to be good and sufficient to pay in full all the general legacies, in'good faith, paid to certain other legatees their legacies in full, and that the executor had paid out thereby all the moneys which he had.received from said estate. The fourth finding of law is as follows : “ That a decree be entered settling the accounts of the executor in accordance with the foregoing, findings of fact and for the payment tb Adelina M. Smith and Georgia A. Crane of the sums stated to be due them, respectively, in the 14th and 15th findings of fact.” In the decree the provisions of this fourth conclusion of law were omitted, and there was no provision inserted determining in any way the right of Adelina Smith and Georgia Crane to' the payment of the amount due to them from the executor. There was, however, this provision: “ And it is further adjudged -and decreed that this court has no power to decree a repayment to the executor of the various sums overpaid by him as set forth hereinabove^ but that the said executor is hereby directed to collect, the same from the persons who are entitled to pay the same, and to take such legal measures for the collection thereof as he shall be advised right and' proper.” ' ¡
    
    Thereafter Adelina Smith and Georgia Grané, upon learning that the decree had omitted the provision for the payment of their legacies which was contained in the decision; moved for an amendment of that decree to provide for such payment. By .reason of the disability of the surrogate who made the first' decree, the motion came oñ before an acting surrogate, who caused to be entered an order amending the decree so as to provide for the payment by the executor of the amounts due to these, legatees. Of this order and of the ' decree'as thus amended the executor here makes complain t.
    
      Vaseo P. Abbott, for the appellant.
    
      Kendall B. Castle, for the respondents.
   Smith, J.:

At the threshold of the argument the appellant challenges the right of the surrogate to thus amend his decree. By subdivision 6 •of section 2481 of the Code of Civil Procedure, in specifying the incidental powers of the surrogate, it is provided: “ 6. To open, vacate, modify or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error or other sufficient ■cause. The powers conferred by this subdivision must be ‘exercised only in a like case and in the same manner as a court of- record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant Jo this subdivision, the General Term, of the Supreme Court has the same power as the surrogate; and his determination must be reviewed as if an original application was made to that term.”

In Matter of Henderson (157 N. Y. 423), at page 426, Judge O’Bbien, in writing for the court, says : “ The general powers of the Surrogate’s Court are wholly statutory, but it certainly must possess *' * * some inherent power, and the correction of their

•own records, wheh affected by some mistake or clerical error, would seem to . be about as mild" an exercise of such power as can well be imagined. This power is. recognized and perhaps- regulated by various statutes, but it does not proceed from or rest upon statutes, since it would exist without them. (Hatch v. Central National Bank, 78 N. Y. 487; Vanderbilt v. Schreyer, 81 N. Y. 646 ; Ladd v. Stevenson, 112 N. Y. 325.) ”

In Campbell v. Thatcher (54 Barb. 382) it was held that, although a surrogate, after the parties in interest had been represented at a hearing before him, and final sentence or decree has been given, has not general power to open or reverse his sentence or decree, on the ground that he erred as to the law, or decided erroneously upon the facts, he may open such decree for the purpose of correcting any mistake therein, the. result of accidsnt. In that case, by inadvertence the surrogate’s decree failed to credit the. executor with an item of $500, and an order by the surrogate opening the decree .and making the credit was held to be authorized. If the proceedings were in the Supreme Court,.power to correct the judgment to conform.to .the-decision made would not be disputed.

' While the' practice in Surrogates’ Courts differs somewhat, and the decree, rather than the decision, is the official utterance of the. surrogate, nevertheless the decision filed becomes a part of the-record to show any omission from ■ the decree by. reason, of mistake or inadvertence.

Upon the right of these legatees to immediate payment from this executor there has been no adjudication. These legatees would have had no appeal from the decree as first entered, because their petition was not, denied. Power must exist in. the surrogate so "to modify the decree as to express the decision made and authenticated under his-hand upon'the. record. Otherwise these legatees,, without a right of appeal or without a. right of correction, would be. remediless.

But this appeal is also-from the decree as amended. The contention of 'the appellant is that, notwithstanding he has overpaid some-of the legatees, inasmuch as the surrogate has found that this was-done in good faith, he cannot be charged" by the legatees whose-lawful proportion has not been paid, until he has collected bacjr the-amount overpaid from the other legatees. This contention is without support either in authority or reason. The executor had a right" • to refuse to pay any -legatee more than his lawful proportion of theasséts realized. Such was his duty." Any payment in- excess thereof he made at "his peril. He is properly charged with the money - which he ought to have .applicable to the payment of. these legacies, and his own stupidity or good faith will not relieve him.

The case of Harvard College v. Quinn (3 Redf. 514) is cited as. holding a contrary doctrine. This was a cas'e-- where -certain legacies- ■ were required to be paid before other legacies. At the time of the-payment of the prior legacies there were sufficient funds to pay in full: In the case at bar there is no question of a prior legacy. The legacies were all to be paid at-the same time, and it was the duty of the executor to pay ratably.

And this proposition is not without authority. In Matter of Underhill (117 N. Y. 471), Judge Pboicham, in writing-fort'he-co.urt,, says.: “The claim that the executor makes of an alleged overpayment by him to a legatee, is a matter,.so far as a recovery thereof by the-executor is 'concerned, between him and such legatee. * * *' An overpayment made by the executor to any,person entitled to a. distributive share does not in any way diminish the amount of the estate which the law says'is in the executor’s hands for distribution. The law does not recognize any such overpayment, and does not, therefore, permit the executor to credit himself with the amount of the excess. In legal contemplation, the sum is in the hands of the executor as assets of the estate which he must pay over to the parties entitled thereto.” (See, also, Matter of Lang, 144 N. Y. 275; Matter of Hodgman, 140 id. 430.)

We find no reason, therefore, for disturbing the order amending the surrogate’s decree or the decree as amended.

Order amending decree and decree as amended affirmed, with costs.

All concurred.

Decree and order affirmed, with costs.  