
    Westchester County.
    —Hon. OWEN T. COFFIN, Surrogate.
    December, 1888.
    Matter of Underhill.
      In the matter of the estate of Elizabeth R. Underhill, deceased.
    
    Where the executors of an estate have overpaid one of the legatees, and by agreement of the counsel for all the parties, there is inserted a clause in the final decree upon the accounting, ordering the legatee to repay the executor the money she had received in excess of her share, and a transcript of this decree is docketed against the legatees as a judgment, such decree is beyond the jurisdiction of the Surrogate, as he cannot enforce the decree when made.
    There is no limit to the time in which an application can be made to vacate a decree by parties to the proceeding, upon whom a copy of, and notice of entry thereof have never been served.
    A Surrogate who has entered a decree which he has no jurisdiction to make can vacate it, although made with the consent of the counsel of all the parties to the proceeding.
    Philip R. Underhill was the executor of the will ,of the deceased. Proceedings for a judicial settlement of his accounts were instituted, which resulted in a final decree of distribution, in November, 1882. By the will Elizabeth M. Guión, now deceased, was entitled. to the income of a certain share of the estate, with remainder to her children. During the accounting it appeared that the executor had paid to Mrs. Guión about $3,900 in excess of the income to which she was entitled; and upon the entry of the decree agreed upon by all the counsel, there was inserted in it a clause directing her to refund to Mr. Underhill this sum, and it was so adjudged. A transcript of this part of the decree was filed in the county clerk’s office and docketed as a judgment against Mrs. Guión, and the judgment was subsequently docketed in the city and county of New York, 1882. Elizabeth E. Guión, the executrix etc. of Elizabeth M. Guión, deceased now makes application to vacate a part of the decree on which such judgment is based, on the ground that the Surrogate was without jurisdiction to •award the same. There is no proof that Mrs. Guión, or any one authorized by her to receive the same for her, was ever served with a copy of the decree and notice thereof. The application is opposed on the grounds, first, that the Surrogate has no jurisdiction over the matter; second, that the application should have been made within a year after the decree; and, third, that if entered without jurisdiction, it is void on its face and no relief from the court is necessary.
    Alexander Thain, for the motion.
    
    A. E. Dyett, opposed.
    
    
      
       Affirmed by the General Term of the Supreme Court, June 28, 1889.
    
   The Surrogate.

It is claimed that this application should have been made within one year after the entry of the decree complained of, under the provision of section 724 of the Code; but that section declares that such application must be made within one year after notice thereof, and it does not appear that any such notice was given. That is sufficient answer were the section otherwise applicable; but it is not; for the application is not to relieve a party from a decree taken “ through mistake, inadvertence, surprise, or excusable neglect,” but from a decree which, it is alleged, the court had no power to make. I know of no limit to the time within which such an application must be made. If the court had no jurisdiction, no period of time elapsed could confer it. It was held as long ago as the case of Vreedenburgh v. Calf, 9 Paige, 128, when the powers of the Surrogates were much more restricted than at present, that it was their duty to vacate orders that they had no power to make. If it be said that the decree, in the respect complained of, was entered by the agreement of counsel, it is axiomatic that consent will not confer jurisdiction where it is lacking. Having thus reached the conclusion that the court has power to entertain the application, and make such order therein as may be appropriate, the next question is, had it the jurisdictional power to make that part of the decree under consideration.

The portion of that decree read as follows: And it being hereinafter adjudged that said executor and trustee has overpaid to Mrs. Elizabeth M. Guión on her share of the whole net income, after charging her with her share—$1,348.71—of said commissions, the sum of $3,953.35, it is hereby ordered, adjudged and decreed that the overpayment to her, after charging her with said commissions amounts to the said sum of $3,953.35. For this overpayment to Elizabeth M. Guión that said Philip ft. Underhill have and recover from said Elizabeth M. Guión, and he is hereby adjudged, as against her, entitled to the said sum of $3,953.35, and that said Elizabeth M. Guión repay said last mentioned sum to Philip M. Underhill.” This provision, it is contended, the Surrogate had- no power to make. This position seems to be well taken. It is true that he had jurisdiction over the subject matter of the accounting of the executor and over the persons of all the parties. But he had no jurisdiction beyond settling the accounts and enforcing the decree. He was to see that the executor properly charged himself with all the assets of the estate which he had received, had credited himself with proper payments made by him thereout, and to direct a distribution of the balance, if any, remaining in his hands after deductions for commissions, costs, expenses of the accounting, etc. If it were made to appear that the executor had fully paid a beneficiary under the will, the decree would so adjudge and stop at that point. To adjudge beyond that, would be to exceed the power with which he is clothed.

To determine whether a Surrogate has power to make an order or decree in a given case, we only have to inquire as to power to enforce it. If that be lacking, the order or decree is a mere hrutum fulmén. If an executor were negligently to pay a creditor of the testator more than the true and the acknowledged amount of his claim, this court would have no power to decree that the creditor should pay the excess to the executor. It could not compel obedience to the requirements of such a decree, if made; and a legatee stands in precisely the same position, in this respect. Suppose Mrs. Guión had been alone interested in the estate, and had been cited by the executor to attend his accounting, and it had resulted in showing that she had not been only fully paid all that was due to her, but had been overpaid a large amount; and she conceded the payment in full, but disputed the amount of the overpayment claimed, it is quite clear that the Surrogate could not try the question. His is not a court of general jurisdiction such as the executor must appeal to, in order to establish and recover his claim. He could not sue here for any such purpose.

The decree must be amended by striking out the paragraph in question. It is more than doubtful if this court can do any more. A judgment was docketed against Mrs. Guión for the sum mentioned in the county clerk’s office. Section 2553 of the Code declares that the county clerk shall docket the decrees as prescribed by law for the docketing of a judgment of the Supreme Court, and that “ the docketing of such a decree has the same force and effect, the lien thereof may be suspended or discharged, and the decree may be assigned or satisfied, as if it were such a judgment.” Now, if it were a judgment of that court, its lien could only be discharged by that court. It would seem, therefore, that the Surrogate, in so far as that is concerned, has no control over the . docket.

An order may be entered accordingly.  