
    Westchester County.
    Hon. OWEN T. COFFIN, Surrogate.
    January, 1891.
    Matter of Baity.
    
      In the matter of the estate of William Baity, deceased.
    
    Upon the accounting of the administrators with the will annexed of a testator, an insane son of testator, was represented by a special guardian who interposed no objections. Both the account and the decree recited the fact that the interest of the lunatic in the estate had been sold by virtue of certain judgments recovered against him and had been purchased by a devisee under the will. The judgments had been recovered before the son had become insane. Afterwards the wife of the lunatic and his special guardian made an application to set aside the decree on the ground that no sufficient proof had been offered on the accounting in regard to the acquisition of the lunatic’s share by the devisee, and that the administrators with the will annexed upon their accounting "withheld important facts and statements touching the rights and interests of said lunatic and made unlawful claims, to the great wrong of said lunatic. The petition did not state what specific acts had been comitted or omitted by the administrators. Held, that there being no allegation denying the transfer to the devisee, and the other allegations of the petition being entirely indefinite, the application should be denied.
    The deceased left a will, which was duly admitted to probate in 1871. His son, John B. Baity, and son-in-law, Isaac Gott, were the executors named therein. Baity, the son, alone qualified, and acted until his letters were revoked in 1875 on the ground that his circumstances had become so precarious as not to afford adequate security for the proper discharge of his duties. Whereupon Isaac Gott qualified, and subsequently, in November, 1886, died, and his widow, Mrs. Eliza Gott and John H. Moran were, in 1887, appointed administrators with the will annexed. The estate' left by William Baity, in which his children were concerned, consisted chiefly of real property. In March, 1888, the administrators rendered an account of their proceedings, and a decree was entered thereupon, awarding the residue of the'estate, except a fund held in trust, to Mrs. Gott. Maria Baity, the petitioner in this matter, is the wife of said John R. Baity, who has been judicially declared to be a lunatic, and as such is an inmate of the Insane Asylum on Ward’s Island. He was such lunatic at the time of the accounting proceeding, on which he was duly represented by a special guardian appointed for that purpose. The petitioner prays that the decree on the accounting be set aside, etc., and the special guardian concurs in the application. It is alleged in the petition that on the said accounting Mrs. Gott claimed to have acquired all of said lunatic’s share of the estate under a judgment and sale thereof, and that no proof to that effect was offered by her; that the administrators in their accounting withheld important facts and statements touching the rights and interests of said lunatic; and claims that there was material error in suppressing facts and making unlawful claims on the part of the accounting administrators, to the great wrong and loss of said lunatic.
    The answer to the application states that John E. Baity was adjudged a lunatic in the month of August, 1880; that all of his right, title and interest in and to the said estate were sold under and by virtue of certain judgments recovered against him prior to his being declared and adjudged insane, and that the whole had been purchased by Mrs. Gott and is owned by her; that in the petition for said accounting, resulting in the decree complained of, occurs this language. “ That all of the above are of full age and sound mind except said John E. Baity, who has been adjudged and declared insane, but whose entire interest in said estate has long since been sold under and by virtue of certain judgments recovered against him, and has been conveyed to the said Eliza Gott.” That the decree entered upon said accounting directed that certain moneys be paid to Mrs. Gott in full of her share and also in full of John E. Baity’s share, which had been sold to her as aforesaid by Frank A. Eansom, a referee duly appointed for that purpose by the Court of Common Pleas of the city of New York, and conveyed to her; which sale occurred in 1874, and before the sanity of said John E. Baity was questioned. The answer also alleges that the petitioner, Maria Baity, has no interest whatever in the estate. On an examination of the verified account it appears to have been alleged that the entire interest of John E. Baity under the will was sold, as stated in the petition, and was conveyed to Mrs. Gott by a referee appointed for that purpose by the Court of Common Pleas of the city and county of New York.
    A. B. Tappen, for the motion.
    
    Oivide Dupre, opposed.
    
   The Surrogate.

Although not distinctly alleged in the petition it may be gathered from the facts stated therein that it is sought to set aside the decree upon the ground of fraud. There can be no doubt that the lunatic was duly cited to attend the accounting, and that he was duly represented by special guardian. Indeed the fact is admitted. The petitioner’s whole case seems to rest chiefly on the fact that no proof was produced to the court showing the judicial sale of John R. Baity’s interest and the purchase thereof by Mrs. Gott. It will be observed that the petitioner nowhere denies such sale and purchase, and does not, therefore, attempt to establish any fraud in that respect. Nor does she allege any newly discovered evidence, or clerical error in the proceeding. It is true that the petition alleges that on the accounting the administrators withheld from the court important facts and statements touching the rights and interests of the lunatic, and made unlawful claims. What facts and statements were withheld ? What were the unlawful claims made by them ? The petition fails to disclose them—to tell us what those facts were, or to show how any claims made were unlawful. Had it been shown that the lunatic’s interest, claimed to have been sold under judgments and purchased by Mrs. Gott six years before he was adjudged insane, and long before she became administratrix, had never been so sold or purchased, a different question would have been presented. Then the decree could have been challenged as fraudulent.

If it were true that there was no proof, or insufficient proof, of the claim of Mrs. Gfott to the share of the lunatic, that fact would not render the proceeding obnoxious to the charge of fraud, clerical error or other like cause, for which the Surrogate, under the provisions of subdivision 6 of section 2481 of the Code, is authorized to open, or set aside the decree. The only remedy would be an appeal. Singer v. Hawley, 3 Dem. 571; affirmed by Court of Appeals, 100 N. Y. 206. But there was proof, whether sufficient or not to warrant the decree, is immaterial. The sale of John R. Baity’s interest under legal proceedings and the purchase thereof, were alleged and set forth both in the verified petition and also in the verified account, and to which, thus challenged, no objection was interposed by the special guardian, or by any other person. This statement was properly made in the account, and uncontradicted, was sufficient evidence on which to base the decree. Dayton says, (Practice, 508,) the executor or administrator may also include in the account such statements of any facts or circumstances which may have attended the administration, as he may deem important to a correct understanding of the manner in which he may have performed the duties of his trust, or to a just settlement of the affairs of the estate.” See also Redfield, Practice, 759, 760. The petition and account of proceedings are in the nature of pleadings, and when properly verified are, in general, as to the facts stated, unless questioned, to be regarded as true.

The petitioner herein, the wife of the lunatic, appears to have no legal, interest in the estate which would render her a proper party to the proceeding. Whether validity is rendered to the application by the fact that the special guardian.joins in it, has not received much consideration. It has been deemed best to decide the matter upon its merits.

An order will be entered denying the application.  