
    Westchester County.
    Hon. OWEN T. COFFIN, Surrogate.
    November, 1890.
    Matter of Watts.
    
      In the matter of the estate of Simon Watts, deceased.
    
    A decree judicially settling the account of an executor will not be reopened upon allegations on the part of the executor that be has by error charged himself as executor with assets which do not belong to the estate.
    The deceased left a will of which his widow, Sarah Watts, and Edward F. Gaylor, his son-in-law, were the executors. Gaylor took sole charge of the management of the estate. He was cited to render an account of his proceedings as such, and the proceeding resulted in a decree in July, 1890, which adjudged that he had in his hands a balance belonging to the said estate amounting to $20,853.50. The executor has now made application for an order modifying the decree by deducting from said balance the sum of $6,841.34 with interest thereon, on the alleged ground that the same was not a part of the assets of the deceased, but was a gratuity fund paid to the family of the deceased by the trustees of the New York Produce Exchange of which the deceased was a member.
    A. J. Adams, for the motion.
    
    Wm. H. Robertson, opposed.
    
   The Surrogate.

It is now made to appear that the amount which the executor seeks to have deducted from the balance in his hands, as fixed by the decree, was a sum given to the widow and children of the deceased, by what is known as the Produce Exchange in the city of New York, through the trustees of what is called the gratuity fund. Section four of the rules and by-laws thereof reads as follows : Nothing herein contained shall be' construed as constituting any estate in esse which can be mortgaged or pledged for the payment of any debts, but it shall be construed as the solemn agreement of every subscribing member of the New York Produce Exchange to make a gift to the family of each deceased member, and of the Exchange to collect and pay over to such family the said gift.” This is the only provision to which the attention of the court is called. It would seem that the trustees of the fund gave checks for the sum to which the widow and children were each entitled, and that the executor procured their endorsement thereof, obtained the money and used it for his own purposes, whether with or without the consent or knowledge of the payees is deemed immaterial. He fully knew the source from which the money was derived, and that it did not belong to the estate as assets. And yet, he. included the amount in the inventory of the assets he. caused to be filed, and charged himself with the same, in the account of his proceedings which he rendered. There was a contest regarding some items of the account, but none whatever concerning this. The court was in ignorance as to the derivation of this fund, and was bound to regard it as a proper legal charge made by the executor against himself. The contest resulted in the account being adopted as rendered, and a decree was entered accordingly. On the facts before it, this court clearly had jurisdiction in so far as this sum is concerned. The learned counsel for the executor claims that it had not, and cites the Matter of Brooks, 5 Dem. 326; Greeno v. Greeno, 23 Hun 478; Brown v. Catholic Mutual Benefit Ass’n, 33 Id. 236; Hellenberg v. B’Nai Berith, 94 N. Y. 580, in support of his position. But in those cases the point was not made, and they were arrested by the question at" a stage of the proceeding where it could be properly considered, while this case has entirely passed beyond such stage. Had the executor failed to charge himself with it and the contestants insisted that he should, then the matter would have been open for consideration, the court would have had jurisdiction to determine it, and would, doubtless, have held that it was not properly chargeable against the executor as such. But he here seeks to set aside a decree because it charges him with a sum he confessed, in his account, with a full knowledge of all the facts, to belong to the estate.

But this court does not seem to be authorized by § 2481 of the Code to open the decree, on the ground urged. No fraud, newly discovered evidence, clerical error, or other like sufficient cause, is alleged. See Olmsted v. Long, 4 Dem. 44. The executor knew all the facts when he filed his account. The error, if any, was one purely of law, and that has been held not to be a sufficient cause. In re Dey Ermand, 24 Hun. 1.

There is less reluctance in denying this motion for the reason that the only difference it can make to the executor is the mode of enforcing payment. In any event, his liability for the amount continues.

Motion denied.  