
    
      In re Prout’s Estate.
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    Executors and Administrators — Probate Practice — Who Mat Require an Account.
    Under Code Civil Proc. IT. Y. § 2726, providing that a personal representative may be required to file an account upon the petition of “ a creditor or person interested in the estate or fund, ” such a petition may be filed by the residuary legatee of a deceased distributee of an intestate’s estate, to cause the administrators to account, as such legatee, though not legally entitled to receive the distributive share of his testator, is a “person interested, ” within the meaning of the statute.
    Appeal from surrogate’s court, Hew York county.
    Petition by Moses P. Prout, son of and residuary legatee under the will of Robert T. Prout, deceased, who was an heir and distributee of the estate of William F. Prout, deceased, to require Moses P. Prout, son of Jacob Prout, George Pisnie, and James McHab, administrators, etc., of said William F. Prout, to file their account. It was objected that the petitioner was not “a creditor or person interested in the estate, ” within Code Civil Proc. 1$. Y". § 2726, and could not, therefore, maintain such a proceeding. From an order directing the filing of such account the administrators appeal. For opinions of the surrogate or. other questions affecting the estate, see 3 H. Y. Supp. 831, 834.
    Argued before Van Brunt, P. J., and Bartlett, J.
    
      G. II. Crawford, for appellants. Frederick L. Gilbert, (Fugene D. Haw kins, of counsel,) for respondent.
   Van Brunt, P. J.

This is an appeal from an order made by the surrogate upon the petition of Moses P. Prout, directing that the administrators of William F. Prout, deceased, render and settle an account of their proceedings as such administrators. The objection taken is that the petitioner is not a person interested in the estate so as to authorize him to present his petition for the purposes above stated. The deceased, William F. Prout, died intestate, leaving personal property, and as his next of kin six nieces and four nephews, of whom Robert T. Prout, the father of the petitioner, was one. Subsequent to the death of William F. Prout, Robert T. Prout, his nephew, died, leaving a will, whereby the brother of the petitioner, William, was appointed sole executor, and under which the petitioner was a residuary legatee. This will was admitted to probate by the surrogate of Kings county, and letters testamentary issued thereon to the executor therein named. It is claimed that such executor represents the sole claimant or party in interest in the estate of William F. Prout, deceased, as the personal representative of his nephew, Robert T. Prout, deceased, the father of the petitioner.

The provisions of the Code are that a petitioner of this character maybe presented by “a creditor or a person interested in the estate or fund,” and the interpretation of the term is somewhat obscured by the definition given to it by subsection 11, § 2514, where such person is defined as one who is entitled either absolutely or contingently to share in the estate or the proceeds thereof, or in the fund as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee, or otherwise, except as a creditor. Although the petitioner is not strictly legally entitled to receive directly from the administration any portion of the estate which they are called upon to administer, yet that he is a person interested in the estate, within the provisions of the section, seems to be distinctly held in the case of Fisher v. Banta, 66 N. Y. 468, where the court holds that a legatee, bearing the same relation to the original estate as the petitioner does to the estate of his great uncle, had an - interest in a similar proceeding before the surrogate. It is true that there may have been other reasons for the court holding as they did in that ease, that the accounting should not be considered as final, as the interest of the representatives of the two estates were in no wise hostile, and the interest of the legatees iu the last estate were not represented by any independent party; the proceeding being instituted by a person as representative of one estate against himself as representative of another. Were it not for this expression of opinion upon the part of the court of appeals, we should b^ inclined to hold that the legatee under the will of the nephew had no interest, either absolute or contingent, in any portion of the estate of the great uncle, deceased, but that all the claimants of the petitioner’s father’s estate against the estate of the intestate were represented by the executor. In view, however, of the expression by the court of appeals upon this question, we think that the order should be affirmed, with $10 costs and disbursements.

Bartlett, J., concurs.  