
    Matter of the Judicial Settlement of the Account of Proceedings of Francis Schlosser as Administrator of Elizabeth Schlosser, Deceased.
    (Surrogate’s Court, Westchester County,
    April, 1909.)
    Surrogates’ Courts — Procedure and review — Orders and decrees — Opening, vacating and correcting — Grounds — Errors of law or fact.
    Where by misconstruction of law part of the estate of an intestate survived only by cou'sins and descendants of deceased cousins was decreed to be paid to the descendants of the deceased cousins, the error should he reviewed by an appeal and not by a motion to open 1 and modify the decree.
    Motion to open and modify decree.
    Emile A. Hassey, for petitioner.
    Thornton & Earle, for Lawrence Schlosser, Clara Schlosser and Maria Hicks in opposition.
    Wilson & Wallis, for Ralph L. Raymond and others, in opposition.
   Millard, S.

This is a motion made on behalf of Francis Schlosser, Louis Schlosser and Bernhard Hoff, first cousins of the deceased, to reopen and resettle decree dated May 4, 1908, and entered May 9, 1908, by changing therein the distribution made of the estate in that decree.

The ground urged in behalf of the motion is, as appears from the petition verified November 16, 1908:

That since the making and entering of said decree petitioner has been informed by his attorney, Emile A. ITassey, and verily believes it to be true, that his said attorney was mistaken as to the law applicable to the distribution of said estate, and that said decree was entered upon the erroneous interpretation of the statute of distributions by his said attorney, in that said attorney was then of the opinion that the law directed the distribution of said intestate’s estate to and among her cousins of the first and second degree, and that, in said distribution, the second cousins took by representation the share of their deceased parent’s ancestor. That this was the view also held by the other attorneys who appeared in this matter, and the decree herein was prepared and entered by petitioner’s attorney accordingly, the said other attorneys assenting thereto. That, as deponent has since been informed by his said attorney, 'by an amendment to the statute of distribution of intestate’s estates, viz.: Section 2732 of the Code of Civil Procedure, subdivision 12, ‘ No representation shall be admitted among collaterals after brothers’ and sisters’ descendants,’ which went into effect May 12th, 1905, the second cousins of said deceased were barred out and excluded from participating in the distribution of said intestate’s personal estate, and that, therefore, the second cousins of said deceased, namely, Lawrence Schlosser, Clara Schlosser, Marie Hicks, Ralph L. Raymond, Cortland S. Raymond and Marie A. Zuber, were not entitled to any portion or interest in the personal estate of said Elizabeth Schlosser, deceased, but that the entire personal estate of said decedent is distributable only amongst the first cousins of said decedent.”

Whether, as a matter of law, the distribution made in the decree is erroneous and wrong, owing to a mistake in the construction of the law, is, to my mind, at this time, immaterial. The facts are that the decree referred to was presented to the court by the attorney for the petitioner in this. proceeding; that said attorney also represented, as was conceded on the argument, the other parties who would be benefited by the change asked, if the motion were granted. Upon the return day of the citation, not only the attorney for the petitioner and the others above mentioned appeared, but Messrs. Wilson & Wallis also appeared for Cortland S. Raymond, Ralph L. Raymond and Mary A. Zuber, second cousins of said deceased, and two of the other second cousins filed waivers of the issue and service of citation and consented to the entry of a decree settling, said account as filed. It also appears from the affidavit of Lawrence Schlosser, one of the second cousins of said intestate, that Emile A. Hassey also appeared and acted as attorney for him and his two sisters Clara Schlosser and Marie Hicks, so that, on the return day of the citation to attend the accounting of said administrator, all of the parties were represented by attorneys; and the said decree was settled upon notice to them and, by consent of all parties, was made, as all of them then believed, in accordance with the law.

The attorney for the petitioner now claims that he was mistaken in this respect; although it is still urged by Messrs. Wilson & Wallis and by Messrs. Thornton & Earle, who appear for all of the second cousins, that the original decree was correctly made in accordance with a proper construction of the statute. Under this state of facts, it is clear that, if any error has been committed, it is as to the construction of the law upon this subject and is a matter which should be reviewed by appeal and not by a motion to open and modify the decree; because the error, if any exists, is an error of substance and not a clerical error and this is an attempt to review the decision upon the merits.

That this cannot be done is clearly held in Matter of Tilden, 98 N. Y. 434, Matter of Hawley, 100 id. 206, Matter of Henderson, 151 id. 423, and Matter of Ahlers’ Estate, 104 N. Y. Supp. 529.

It appears, from the petition filed on this motion, that all of the payments to the second cousins provided for in said decree have been made; and, upon the argument of this motion, it was stated that several of them had already expended their money and that it would be impossible for them to return it if the decree was modified or changed. While this may not affect the merits, it certainly should be considered in exercising discretion, if any existed, as is claimed by those in support of the motion, although I do not believe that it does exist.

This motion, of course, is made in accordance with the provisions of section 2481 of the Oode of Civil Procedure, which has been construed and passed upon in the cases above stated and does not authorize a surrogate to interfere with such a decree as was made in this case upon the grounds asked for.

The motion to open and vacate the decree is therefore denied.

Motion denied.  