
    Matter of the Final Judicial Settlement of the Estate of William Clapp, Deceased.
    (Surrogate’s Court, Washington County,
    January, 1900.)
    Executor and administrator -r- Same final account cannot be attacked twice by same person.
    Where none of the objections made by a beneficiary under a will and an heir-at-law of the testator, to the said will or to the accounts of the executrix, filed on a compulsory accounting, have been sustained, and the beneficiary has made a settlement as to her rights in the estate, a practically identical subsequent account, filed by the executrix of her own motion, cannot be attacked by the beneficiary although, because of the debts of the estate, she took nothing under her settlement.
    Peoceedings upon the judicial settlement of the account of an executrix.
    T. D. Trumbull, Jr., for executrix.
    R. O. Bascom, for contestant.
   Davis, S. S.

This is a proceeding by the executrix, upon her own petition, for the final judicial settlement of the estate of her testator. Upon the filing of the petition and account, a citation was issued and served upon- the necessary parties. On the return of the citation, Lucy H. Outhbert, one of the heirs-at-law, and a beneficiary named in the will of the testator, appeared in person, and with counsel, and filed verified objections to the executrix’s account, and served a copy of the same upon the attorney for the executrix.

The executrix, by her attorney, moved to strike out the objections, on the ground, among others, that the objector had, in a former proceeding instituted by herself, exercised and exhausted her right and opportunity to object to the executrix’s said account, by filing objections thereto, and demanding that it be surcharged, and after a trial and hearing thereon, said objections were not sustained, and the account judicially settled and allowed, as presented.

It appears, from the records in this case, that when the will of the said deceased was offered for probate, Lucy H. Cuthbert (the same person who is now objecting) appeared and filed objections to the probate of the will. After several hearings, a compromise was effected, the objections being withdrawn, and all the heirs-at-law signing an agreement, August 28, 1895, under seal, to the effect that the contestant, Lucy H. Cuthbert, should, after payment of the debts and expenses, share equally with the other heirs in the surplus, if any, in the final distribution of the estate, without regard to any or either of the legacies under said will, except the legacy to Abigail Clapp.

In March, 1898, Lucy H. Cuthbert filed a petition in this court,' upon which a citation and order was issued, requiring the executrix, Abigail Clapp, to render a full and final account of her proceedings as such executrix, and to pay to the petitioner her portion of the surplus of the estate, according to the agreement of August 28, 1895.

Upon the return of the citation and order the executrix made a full and final account of her proceedings. The petitioner filed general and specific objections to said account, and demanded that it be surcharged in a large amount. Several hearings and adjournments were had, and a large amount of testimony was taken on the trial of said objections. Rone of the petitioner’s objections to the said account were sustained by this court; and it was found that the estate had been so reduced by debts, expenses, litigation, claims and the shrinkage in the values of the securities, that there was no surplus, and nothing due the petitioner from the estate under the agreement of August, 1895.

On the present accounting the executrix files the identical account that she did on the other accounting, with the exception of a few items of expense, the payment of allowances to counsel under the former decree, and the addition of about $1,700 to the assets of the estate. None of these additional items, however, are objected to on this accounting. Moreover, it appears that the estate now is insufficient to pay the claims that have been allowed and adjudged against it; and if the objections now filed could be sustained, and the account of the executrix surcharged, such surcharge would inure to the benefit of the creditors, and not to the party now objecting.

From all the proceedings taken and had in this court, before me, I do not think the party now asking to surcharge the executrix’s account has a standing in court, that gives to her the right to come in and file objections to the account in this proceeding. She has had her day in court; in the proceedings for the final settlement of the account instituted by herself she had ample opportunity to object to this same account, which opportunity she improved, and filed objections, and she must be presumed to have made every objection to the account that could be made, and after a full and fair hearing upon said objections, none of them were sustained, and the account now filed, being almost identical with the account filed in the former proceeding, and there being no change in the account, nor in the condition of the estate to improve or enlarge the rights of the parties to the agreement of August, 1895, I do not think that the objections now sought to be made to the account can be allowed to stand, and that the motion to strike them out must be granted, and the account judicially allowed and settled, as presented.

A decree may be entered in accordance with this opinion.

Decreed accordingly.  