
    Wever vs. Marvin.
    A petition presented by a creditor, to a surrogate, praying for an order requiring executors to render an account, is sufficient if it states that the petitioner is a creditor of the deceased, and as such has claims against the estate of the testator; although it does not in terms specify that the claims are against the personal estate.
    A surrogate cannot make, or enforce, an order that a person account as executor, to whom letters testamentary have not issued pursuant to the provisions of the statute, and who has not appeared and qualified.
    Where a person acts as executor de son tort, the doctrine of estoppel in pais cannot be applied; so as to prevent his denying that he is executor, or to give the surrogate jurisdiction to call him to account as such.
    Appeals from all decrees or sentences of surrogates, should be first heard at general term ; it seems.
    
    This was an appeal from an order or sentence of the surrogate of the county of Albany. On the 17th of March, 1852, Nicholas Wever presented a petition to the surrogate, praying that an order might be granted that Francis I. Marvin and Uriah Marvin render an account of their proceedings as executors of the last will and testament of Uriah Marvin, deceased. The petition stated that Wever “is a creditor of Uriah Marvin, late of the city of Albany, deceased, and as such has claims against the estate of said deceased.” It did not state the nature of the demand, or whether it was against the personal or the real estate of the deceased. On the 4th of May, 1852, the parties appeared before the surrogate, and Wever called for the account of the Marvins, as executors, which they declined to produce, and thereupon Wever moved that an attachment issue against them. This was objected to by the Marvins, on the ground that they denied that Wever was a creditor, or had any demand against the estate. The objection was overruled by the surrogate. It was further objected to the issuing of an attachment against Uriah Marvin, on the ground that the records of the surrogate did not show that letters testamentary had issued to the said Uriah. And, as proof of this, the book of records of ' letters testamentary was produced. From the record it appeared affirmatively that letters testamentary had been issued to Francis I. Marvin only. In answer to this objection Wever claimed that Uriah Marvin had acted as executor, and was therefore estopped from denying that he was such executor. To establish the fact that he had so acted, Wever presented in evidence, from the files of the surrogate’s court, the copy notice of appraisal of the personal estate, and the affidavit annexed to the inventory of said estate. The notice and affidavit purported to be signed by Uriah Marvin as executor.
    On the 8th of June, 1852, the surrogate made a decree or sentence directing the issuing of an attachment against Francis I. Marvin, and denying the application for an attachment against Uriah Marvin. From the latter part of the decree Wever appealed.
    
      H. S. McCall, for the appellant.
    
      Northrop & Williams, for the respondent.
   Wright, J,

I doubted, on the argument of this appeal, as to the power to hear it at special term. I cannot say that subsequent examination or reflection have satisfied me that the power exists. The revised statutes provided that an appeal of this kind might be made to the court of chancery. (2 R. S. 610, § 104.) The court of chancery being abolished, its powers and jurisdiction were conferred on the supreme court. (Judiciary act of 1847, § 16.) The judiciary act provided that the justices of the present supreme court should possess the powers and exercise the jurisdiction possessed and exercised by the late justices of the supreme court, chancellor, vice chancellors, and circuit judges, so far as the powers and jurisdiction of said court and officers were consistent with the constitution, and the provisions of the judiciary act. (Ibid.) Formerly, an appeal of this kind was heard by the chancellor; whether at a regular or special term of the court, can be, it seems to me, of no consequence to inquire. An appeal from the determination (in an appealable case,) was directly to the court for the correction of errors. Now the appeal from the surrogate is to the supreme court; but whether to be heard at a general or special term, is the inquiry. If heard at special term, the effect will be to give three appeals; for it will hardly be contended that either party may appeal directly to the court of appeals from any order or decree I may now make. On the other hand, if an appeal can be taken in the present case from the special to the general term, it will be equivalent to appealing, under the old system, from the chancellor to the chancellor. My impression is, that appeals from all decrees or sentences of surrogates should be first heard at general term; but as the parties desire that I should entertain this case, I will briefly examine it on its merits.

Wever presented his petition to the surrogate of the county of Albany, praying that Francis I. Marvin and Uriah Marvin render an account of their proceedings as executors of Uriah Marvin, deceased. An executor, after the expiration of eighteen months from the time of his appointment, may be required to render an account of his proceedings, by an order of the surrogate, to be granted upon the application of some one having a demand against the personal estate of the deceased, either as creditor, legatee, next of kin, or of some person in behalf of any minor having such claim; or without such application. (2 R. S. 92, § 52.) When Wever made the application, more than eighteen months had elapsed from the time of granting letters testamentary. His petition stated that he was “ a creditor of Uriah Marvin, late of the city of Albany, deceased, and as such has claims against the estate of said deceased.” This was all that was set forth in the petition, or otherwise, as to his being a creditor, or the nature of his claim.

• The order of the surrogate was not made upon his own motion, but upon the application of Wever; and the first question arising upon the appeal is, whether enough appeared in the petition upon which the citation was issued, to show that Wever, the applicant, was “ a person having a demand against the personal estate of the deceased,” as a creditor. It is stated that he has claims against the estate of the deceased, as a creditor. It is not stated, to be sure, in terms, that as creditor he has a claim against the personal estate; but I think the allegation cannot very well be understood in any other sense. The petitioner is applying to the surrogate for an order that the executors render an account of their proceedings in relation to the personal estate alone; and it is upon such application that the allegation is put forth, of his claims as creditor, against the estate of the deceased. The Marvins having appeared before the surrogate, they declined to produce any account; whereupon Wever moved that an attachment issue against them.

The issuing of an attachment against Uriah Marvin was objected to, on the ground that he was not an executor; letters testamentary having been issued only to Francis I. Marvin, which latter fact was affirmatively shown. The surrogate made an order granting the attachment as against Francis I. Marvin, but denying it as against Uriah Marvin.

The revised statutes provide that “ every person named in a will as executor, and not named as such in the letters testamentary, or in letters of administration with the will annexed, shall be deemed to be superseded thereby, and shall have no power or authority whatever, as such executor, until he shall appear and qualify.” (2 R. 8. 71, § 15.) In this case it appeared affirmatively, that although Uriah Marvin was named in the will as executor, he was not named as such in the letters testamentary; nor was there any proof that he had ever appeared in the surrogate’s court, and qualified. By the express provision of the statute he was superseded, and had no power or authority whatever, as executor. The surrogate could make no order that he account as executor. He had not been appointed by the surrogate, and though named in the will, was by force of the statute superseded and divested of all power and authority.

The counsel for the appellant insists that as Uriah Marvin signed the notice of appraisal, and subscribed and swore to the affidavit annexed to the inventory, he is estopped from denying that he is executor. But the doctrine of estoppel in pais cannot be applied. The surrogate cannot make or enforce an order that a person account as executor to whom letters testamentary have not issued pursuant to the provisions of the statute. He must have been appointed according to law, and not be a mere wrongdoer interfering with the estate, to give the surrogate jurisdiction over him. An executor de son tort is chargeable as such, and may be sued as executor generally: but a surrogate has no power under section 52, chapter 6, article 3, title 3, part 2 of the revised statutes, to call an executor de son tort to account.

[Albany Special Term,

August 31, 1852.

Wright, Justice.]

The question in this case was one of power, with the surrogate. As I view it, he might as well have called upon any other person not named in the will, but who should choose to sign the notice of appraisal, and swear to the affidavit annexed to the inventory, as upon Uriah Marvin, to account before him. In an action by the proper parties, if Uriah had taken possession of the personal estate, he not being executor or administrator, he would undoubtedly be liable, and under certain circumstances the doctrine of estoppel might be applied; but the power of the surrogate to enforce an accounting is limited to the executor or administrator to whom letters have issued according to law, and who have appeared and qualified. Here, it affirmatively appeared that Uriah Marvin was not named in the letters testamentary. He had not been appointed, according to law, executor, and although named in the will as such, had, by operation of the statute, been superseded.

I think there is no error in the order of the surrogate, and that it should be affirmed.  