
    In the Matter of the Application of Mary J. Westerfield and Flora E. Rogers for an Intermediate Accounting by the Trustees under the Last Will and Testament of Jason Rogers, Deceased. Thomas Rogers, Appellant; Mary J. Westerfield and Flora E. Rogers, Respondents.
    
      Surrogates Court — it cannot open a decree of the Appellate Division finally disposing of an appeal.
    
    The Appellate Division, upon an appeal from an order of the Surrogate’s Court refusing to open a decree, rendered upon the accounting of a testamentary trustee, charging him with liability for a devastavit committed by his co-trustee, modified the decree by adjudging that the trustee was not chargeable with any portion of the devastavit committed prior to a certain date and affirmed it as modified. The cestuis que trustent then moved the Appellate Division for an order opening its decree, and, such application being denied, they made a similar motion before the surrogate upon the same proofs. The surrogate made an order opening the decree and authorizing proof to be taken upon the subject of the trustee’s liability for the devastavit of his co-trustee.
    Testimony was then given before the surrogate, and the surrogate made and •entered a decree charging the trustee with the entire devastavit without reference to the decree of the Appellate Division. An appeal from that decree, not accompanied by an appeal from the order opening the decree, resulted in the reversal of the decree, so far as it charged the trustee with the devastavit committed prior to the date fixed in the former decree of the Appellate Division, the Appellate Division considering the additional testimony which had been taken before the surrogate.
    "Upon an appeal thereafter taken from the order of the surrogate opening the decree,
    
      Meld, that as the Appellate Division had made a decree finally disposing of the subject of the trustee’s liability for the devastavit of his co-trustee, aud had refused to open such decree, the surrogate had no power to make the order opening the decree, as the effect thereof was to overrule a decision of the Appellate Division made upon the same subject;
    That as the question of the trustee’s liability had been determined upon the merits, after a consideration of the additional testimony given before the surrogate, the question of the invalidity of the order opening the decree should not be considered, but that such testimony should be permitted to remain in the record, none of the parties having been prejudiced by the result;
    That this, however, was the only effect which could be given to the order, and that it could not be considered as having any'effect whatever upon the finality of the decree of the Appellate Division as it existed when the order was made.
    
      The power of a surrogate under section 3481 of the Code of Civil Procedure to open decrees is the same as that possessed by the Supreme Court over its judgments and does not extend to a final decree made by an appellate tribunal.
    Appeal by' Thomas Rogers from an order of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 20th day of March, 1899, opening a decree and authorizing the .petitioners to take further proof upon the merits.-
    Also a motion by Thomas 'Rogers to resettle a former order of the Appellate Division, second department,. made and entered on the 11th day of July, 1898.
    Also a motion by Thomas Rogers asking that the Appellate Division, second department, enter a final decree, based Upon its decision entered on the 27th day of March, 1900.
    
      Pdward Winslow Paige \_Pastus 8. Pa/nsom and Henry L. 8Um-son with him on the brief], for the appellant.
    
      William Q. Wilson, for the respondents.
   Goodrich, P. J.:

The matters disclosed by the papers upon this appeal and in the respective motions call for an examination of - "the prior proceedings in the matter to which these applications refer; and while it is not necessary to restate all the details, it is proper to call attention- to the several decisions and orders which have-been made by this court, in order that the present applications and our disposition of them may be fairly understood. The matter, as it has appeared in this court, will be found reported in Matter of Westerfield (32 App. Div. 324; 40 id. 610; 48 id. 542), and in the Court of Appeals (163 N. Y. 209). .

' The first proceeding which brought the matter before this- court was an appeal from an order refusing to open a decree of accounting- charging the defendant Thomas. Rogers with liability as trustee Under the last will of Jason1 Rogers, ■ deceased. Upon such" appeal we held that, as the record disclosed that Thomas Rogers accounted for the sum, of $20,000 as being on hand at the time the decree was entered, he was by its terms chargeable with, and bound to account for, such sum, but that as he claimed that such sum had never-come to his hands, but remained in the custody -and control of his co-trustee, Cauldwell, the decree might be opened so far as to permit him, if he could, to show any facts in connection therewith which might relieve him from responsibility therefor, and that, as it appeared that Cauldwell had the sole custody and control of the moneys and property of the estate at the-time the decree was entered, and thereafter misappropriated it, such decree constituted no bar preventing Thomas Rogers from showing such facts in exoneration of liability therefor. As it appeared that Cauldwell had misappropriated property and moneys of the estate to a sum upwards of $130,000 after the entry of the decree, and prior to December 8, 1895, we held, as matter of law, that Thomas Rogers was not liable therefor, and reversed the decree of the surrogate which charged him with such liability, holding that Thomas Rogers became liable for the devastavit of this estate only after the 8th day of December, 1895, when the disclosure of such devastavit was made to him by his co-trustee. And in this respect the court modified the decree and affirmed it as so modified. This, then, became a decree of this court, binding upon the surrogate and all the world so long as it stood unreversed. Up to this time it has not been reversed by any court of competent authority.

In that proceeding there was also an appeal from a decree of the surrogate removing Cauldwell and Rogers as trustees of this estate. That decree this court affirmed.

■ On the 12th day of May, 1898, the surrogate made and entered a decree, based upon the decree of March 16,1897, adjudging Thomas Rogers to be guilty of willful contempt in failing to comply with the provisions of the last-mentioned decree, and directing that he pay a fine of $60,000, and in default that he be confined in the county jail of Westchester county until such fine should be paid. This decree we reversed, holding that, as it did not appear that the property which Rogers had induced Cauldwell to transfer to the estate was insufficient to pay the amount of the devastavit committed by Cauldwell, the proceedings to punish as for a contempt should be held in abeyance until such property could be sold and the sum determined for which Thomas Rogers was liable, and that until such event happened there existed no sufficient basis for committing him for contempt, as the proceeds of the property might discharge all the obligation of Thomas Rogers to this estate. And in this connectión we also considered the fact, that Oauldwell,. the co-trustee who had stolen the property, was in no wise committed for con-. tempt or otherwise punished, although by his acts alone the devastavit had been produced.

There was also an appeal from an ■ order made by the surro- . gate, denying a motion made by Thomas Rogers to open a decree settling' the accounts of Rogers and Oauldwell as. trustees under the will, which decree embraced the proceedings of the trustees up to September 1, 1893, on which motion Rogers asked that it be declared in the decree that the moneys and property therein described were in the sole possession of Oauldwell, and that the latter, and not Thomas Rogers,- be decreed to ¡jay over such moneys and property. This order we reversed so far as it assumed to charge any liability ■ upon Thomas Rogers prior to -the 8th day of December,- 1895.

The -next step in this proceeding was a motion made by the petitioners for an order of this court opening its -order or decree made herein as above recited, so as to permit such proof to be taken as might" be necessary to bring before the court all available evidence upon the question found to be material by the decision of this court, and also as might be necessary to a due consideration of all the questions -then pending before this court. This application was based upon the affidavits of the petitioners and the affidavits, of their attorneys. After a due consideration of. such application the same- was denied, the reasons therefor being stated in 48 Appellate Division, 543. Immediately following this application the petitioners applied upon the same proofs to the surrogate of Westchester county to open such decree and take further evidence upon the subject of Thomas Rogers’ liability for the devastavit of Oauldwell. This application resulted in the surrogate’s making an order opening said decree and authorizing proof to be taken upon such subject. Arid by this appeal that order is brought into this court at this time. The surrogate thereupon took proof upon -the general subject of Thomas Rogers’ liability for Cauldwell’s devastavit.

At the time the motion was made by the petitioners to open the decree in this court Thomas Rogers made -an application to have the order which opened the decree of March 16, 1897, resettled, so- as-to permit him not only to give proof in exoneration of his liability for the $20,000, but also for any other moneys or property misappropriated by Oauldwell. This motion the court denied, for the reason that he was not barred by said decree from showing that the property and moneys were misappropriated after the entry of the decree. These reasons have been already fully and sufficiently stated. The surrogate, after taking proof upon the entire subject, rendered a decree charging Thomas Rogers with the whole of Cauldwell’s devastavit without regard to the determination and decree as ■directed by this court upon the prior appeal.

Upon appeal from such decree, the same was reversed so far as it •charged Thomas Rogers with the devastavit committed by Cauldwell prior to the 8th day of December, 1895. In addition thereto we struck from such decree an item of $5,000, there being no suffi•cient evidence to sustain a finding charging Thomas Rogers therefor. We also struck from the decree that part which charged Thomas Rogers with the whole of the sum advanced to carry the Empire Hotel property after the new trustee was appointed; holding that Thomas Rogers could be charged only with a proportionate part of such sum as to the adult cestuis que trustent. We also modified the decree as to the rate of interest which should be charged against Thomas. It was claimed by him that he should be credited with one-third of the sum which had been paid on account of ¡the .Oauldwell property, for the' reason that such sums were taken from the corpus of the estate, a third of which belonged to him, and, unless credited therewith, he would' be subjected to a •double charge as to such amount. ...Upon the record then before us we were unable to determine whether Thomas Rogers had been so •charged or not, and we remitted such question to the surrogate for •disposition. In all other respects we affirmed the decree as thus modified. Therefore, the only question which was left for the surrogate to determine, so far as Thomas was concerned, was simply whether he had been charged twice for one-third of such amount. Our reasons for the conclusions are stated in 48 Appellate Division, •542.

Application was then made for leave to appeal to the Court of Appeals, which was granted by this court, and certain questions were •certified. That court held that the answers to such questions depended upon the facts established by the evidence, and, as this depended upon different inferences, the Court of Appeals was not authorized under the Constitution to answer the same, and, therefore, dismissed, the appeal. In the opinion the court stated, in interpretation of the judgment .of'.this: court -. “ It did not attempt to-modify the judgment or. to strike from the decree the items in controversy. As we understand it, the court intended to- order a further hearing with reference to thosé items. It may .be that the parties can submit further evidence bearing upon these items, and if .they can, we think it should be permitted.” (163 N. Y. 209, 213.)

So far as this- court has.determined that Thomas Rogers could not be charged with the devastavit of Cauldwell, the decree as entered by this court was intended to be final, and twice final, as that; question was settled, on -the first appeal to which we have called atten-tian. It .was equally final upon the last appeal, after a consideration of the additional testimony taken by the surrogate, It was the intention of this court- to make- it final as to .every question involved,, except that which related to the amount, if any, of Thomas Rogers’ interest in the principal sum applied upon the Cauldwell property. The first motion before - us asks, this court now to make up and direct-a judgment upon • the proof and- proceedings -as the sanie appeared when such decision was made. The second motion is for a resettlement of the order .opening the. decree of March 116, 1897, so as to .permit Thomas Regers to give proof in exoneration .of,; any liability thereunder for Cauldwell’s devastavit. ■ . . .

. We shall in /our discussion consider the present- matters in the order in which they aré stated. The first involves the power of the-surrogate to make the order opening the decree and permitting further testimony to be taken after such order.has been denied by-this-court... ft is certainly a novel proposition, to say- the least,, that- a, final decree of an appellate tribunal can be -vacated. and- set aside-by. the ..court from which the appeal is taken. That this decree is a final decree is settled by the Court of Appeals, (Matter of Prentice, 160 N. Y. 568; Matter of Tilden, 98 id. 434.) And. this court so treated it upon the .first appeal. (32 App. Div. 324.) ' The effect, therefore, of the surrogate’s order was to vacate-a decree made by this court. And not only that,..but the petitioners themselves,- in recognition of the power of this court in the premises, at first made the application to this court to open ..the decree; and, as we have seen, that motion was denied. The surrogate’s order, therefore, not only opened this decree hut overruled the decision of this court made upon the same subject. There was no warrant in law for any such proceeding. By the provisions of section 2587 of the Code of Civil Procedure,- the appellate court is authorized, upon appeal from the decree of a surrogate, to reverse, affirm or modify the decree, and may in a proper ease grant a new trial or hearing. Prior to the adoption of the Code such appeals and decrees thereon were governed by the practice existing in the Chancery Court. When tile appeal was heard by the chancellor, and the decree entered thereon, such decree became a final, binding adjudication. Such court might order a new trial, but it was not at all essential or necessary that it should do so, as it might in a proper case itself make the judgment, and with that judgment or decree the master was powerless to interfere. (Schenck v. Dart, 22 N. Y. 421; Matter of Ross, 87 id. 514; Hewlett v. Elmer, 103 id. 156; Gelston v. Codwise, 1 Johns. Ch. 189 ; Lyon v. Merritt, 6 Paige, 473.)

The Code provisions have assimilated this practice with that on appeals from the decrees of surrogates, and, also, made the practice uniform with that which obtains on appeals from judgments of the Supreme Court. (Code, § 1317.) The language of that section, so far as applicable to final judgments, is substantially the same as that of section 2587, to which reference has been made heretofore. Com sequently, the rule which governs the power of the trial court on appeals from judgments is equally applicable to appeals from surrogates, as also were the rules of the Court of Chancery from which the system was taken. In Marshall v. Boyer (52 Hun, 181) it Was held that, where the appellate court had exercised its power in modification of a judgment, its determination was absolutely final, and that with such determination the lower court could not interfere. The court, in disposing of the question, said, Barker, P. J., writing: “ Such a judgment is' final, so far as this court (Special Term) is concerned, and without its permission no further action can be taken to change, alter or modify the judgment as it was affirmed. Otherwise a cause would never be at rest, and there would -be confusion and inconsistency in the judgments of the courts.” (Hewitt v. Ballard, 16 App. Div. 466; Matter of Livingston, 34 N. Y. 555.)

The power of the-surrogate,.under the provisions of section-.2481 -of' the Code, to open decrees is the same as that possessed by the Supreme Court over its judgments, so far as the statute authorizes it to exercise the same. (Matter of Henderson, 157 N. Y. 423.) But, as we have already observed, such power -and authority is not possessed by the Supreme Court over final decrees made by an appellate tribunal; and none of the authorities cited by the learned surrogate in'support of his order controverts in the slightest degree the rule as above stated;- in none of them was such question presented. As the order was not necessary to correct mistakes or omissions, over which the surrogate has power, it follows that it Was granted without authority, and, had the appeal which was taken ■therefrom been promptly brought to the attention of this court,, the order would doubtless have been reversed. Under it, however, the parties proceeded to. take testimony, and upon such testimony and that theretofore given, the surrogate made and entered his decree. From that decree an appeal -was tajken and brought to a hearing in this court, but the appeal from the order opening such decree did not accompany that appeal. This court, upon that appeal, considered the additional testimony which had been taken and reversed the decree of the surrogate, as we have heretofore stated. . (48 App.. Div. 542.)

. Having determined this question upon the merits, after a consideration of all the testimony, we think that the question of the invalidity of this order should not now be considered, but that such testimony should be permitted to remain in the record, as "none of the parties is in any degree prejudiced by such a result, . The order, however, should not be considered as having any effect ‘whatever upon the finality of. the decree of this court as it existed at the time the order was made. The testimony taken thereunder is permitted to stand, but no further effect is given to such order.

The motion to resettle the order opening the decree- of March 16, 1.897, makes the second time that this matter has been brought to •the attention of this’ court. As we have. seen, it was first pre^. sen ted in connection with the motion made by the petitioners for. a new trial. At -that time, and upon the record then before this court, it ■ appeared that. Oauldwell had possession and control, of all the property and moneys belonging to the estate at.the tirne-^the decree was entered, and we then held that, as Thomas Rogers might show the subsequent misappropriation of such moneys by Cauldwell, the terms of that decree were not binding upon him if he established such fact. The testimony which was subsequently taken has borne thereupon, and, under the proof as given, attempt is pertinaciously made to construe such testimony as showing that this decree was a binding adjudication. The entire discussion which has been had in this court shows beyond the possibility of misapprehension that the court determined that Thomas Rogers was not chargeable with anything except the $20,000, prior to the 8th day of December, 1895 ; and this, for the reason that he was excluded from participation in or control over this estate prior to that time. As the proof bearing upon the whole subject of his acts prior to that date has been taken, and as the construction put upon it by the court was that he was not liable, and as the decree of this court has been made upon that basis, it is clear that Thomas Rogers ought not by any possibility to be prejudiced by any view that such decree of the surrogate, of March 16, 1897, is a bar. No one will now be prejudiced by removing such a possibility, grnd in view of the peculiar situation which all the matters in difference between these parties have assumed, we think this motion should prevail, and that the order should be amended nunc pro tune as of the date of the 11th of July, 1898, so as to permit Thomas Rogers to give proof, in exoneration of his liability for the misappropriation of any money by his cotrustee, William Cauldwell.

We come now to the .second motion and the last of the present proceedings. Notwithstanding that it appears that the decision of this court upon the last appeal prior to the present was clear in its enunciation of what it determined, at least so far as concerns the question of the liability of Thomas Rogers for the devastavit of Cauldwell prior to the 8th of December, 1895, yet we find from the record that the learned surrogate, instead of taking proof upon the subject returned to him for disposition, immediately began an inquiry into the subject of Thomas Rogers’ liability for the devastavit of Cauldwell, as though it were an original question and had not been determined by this court. And, so far as is disclosed by the record, not the slightest attention was paid to those matters which the court left, and which it seems to have clearly pointed out, for the deteríninatión of the surrogate. It also appears from the moving papers and those read in opposition, that an action in the Supreme Court, upon the equity side of the court, was begun to charge Thomas Rogers with the whole devastavit of Oauldwell, the venue being laid in the first department, wherein these petitioners are plaintiffs and; William Oauldwell and Thomas Rogers and others are defendants. It appears that that action was referred to a sole referee, to hear, try and determine the issues. therein, on Juné 29, 1899, and that subsequently,, and on the 20th of August, 1900, the referee made his report wherein he found that Thomas Rogers was liable for the whole of the devastavit of his co-trustee, Oauldwell,; and .of sub-• stantially all, -if not all, of the moneys which had been lost by the estate by reason of such.devastavit, and directed judgment in favor • of the plaintiffs for the-relief which they asked. Upon such report-judgment has been entered in accordance with its terms. It also appears that the surrogate has rendered no decision upon the pro-, ceedin'g which was remitted to him to determine. This motion asks, that this court do now direct and enter a decree in accordance with the terms of' its prior decision. Undoubtedly, this court had and has power tó enter a.judgment, or decree in accordance w-ithdts determination, Of to take further proof in reference to the subject-matter, and enter a final decree. . (Code Giv. Proc. § 2586 ; Matter of Farmers' Loan & Trust Co., 47 App. Div. 448; Matter of Beck, 6 id. 211; affd. on opinion below, 154 N. Y. 750.)

The unusual character of these proceedings goes very far toward justifying the application made by Thomas Rogers to this court. It cannot be doubted that an attempt has been made in this proceeding to evade the determination and judgment of this court, nor can the disregard of the referee, in his report and opinion, of the decisions'of this court, which in ordinary course of judicial procedure are binding and conclusive in their nature, be misunderstood. Moreover, it was certainly the duty of the surrogate, especially-after the last, decision made by this' court, to follow its direction. This -required a careful compliance with the decrees of this court,, which had. them twice'determined that Thomas Rogers should only be charged with the devastavit of the estate subsequent to December 8, 1895. • The; first decision of this court remitted to him for determination -the-single question, whether Thomas Rogers had. been charged Twice •over for the amount of money put into the Cauldwell property. Upon such subject not an iota of proof has been taken, nor, so far as appears by this record, has consideration of that matter been entertained. Had the surrogate proceeded to take proof upon the $5,000 item adverted to in the court’s opinion, or upon the subject of Thomas Rogers’ liability for the moneys which were put into the Cauldwell property by the substituted trustee and the adult oestvAs que trustent, it would have been clearly excusable, as some doubt might have arisen whether the court intended to remit those matters to the surrogate for disposition. The intent of the court, however, was to remit the single question which we have- before specified, and none other. But the surrogate did not assume to take proof bearing upon these subjects, and so far as proof was taken at all it was upon the main subject of the liability of Thomas Rogers for Cauldwell’s devastavit, a question utterly beyond his power further to determine or interfere with.

We have not now before us the testimony taken by the referee in the Supreme Court action, as it is not returned in the record. His report, however, as well as his opinion, is set out in full, and from these documents we are able to perceive that the proof, with some slight exceptions, is the same as appeared in the record upon the former appeal to this court, to which we have adverted. The opin-. ion, for the most part, presents the reasons of the referee why our decisions upon those appeals were wrong, and why they should not be followed.

The specific findings of fact, to the number of fifty, and the fourteen conclusions of law based thereon, reach entirely different conclusions upon the same facts from those which were reached by this court. So far as the referee has made specifications and findings of fact, there is additional testimony in but one important particular. This consists of the trust deed executed by Thomas Rogers to- Robert S. Hughes, on August 28, 1876, of Thomas Rogers’ interest in the estate of his father to secure the sum of $35,635.09, and from this testimony seems to have been deduced the idea that it authorized the referee to disregard the decisions of this court, the claim being that, the execution of such deed by Thomas Rogers induced' his cotrustee, Columbus O. Rogers, to exclude him from participation in the management of the estate. Quite likely this and other matters furnished the basis for the exclusion of Thomas Rogers, but we are not now concerned with the grounds upon which such exclusion was based. Our concern is with the fact that he was excluded. The basis of the exclusion has never been a matter of concern with this court. Our concern has always been the fact of such exclusion, no matter what considerations induced it. If the execution os this deed constituted ground for the original exclusion of Thomaf Rogers from participation in the management of this estate, it was a continuing cause, because a similar deed of the same property interests was executed t-o Cauldwell as trustee, and if it Was a proper basis for the exclusion by Columbus O. Rogers it 'was' equally so for' the exclusion by Cauldwell. The referee also holds in express terms that the decree of March 16, 1897, was a conclusive, binding adjudication upon Thomas Rogers, fixing his liability for the devastavit of Cauldwell, and bases his decision thereon, although this court had twice decided otherwise.

In view of the possible misconception of' our former decision as to the questions which were remitted, and, also, in obedience to the suggestion of the Court' of Appeals, we think - that We should deny the motion for judgment and remit to the surrogate -for- examination and determination questions as to which misapprehension may have arisen. We are also induced to reach this conclusion for the reason that it is possible that we were in error in charging upon the adult cestuis que trustent liability for any part of the corpus of the estate which was put into the Cauldwell property by agreement with the substituted trustee and' adult cestnds que trustent. In order, however, that there may be' no misapprehension over the matters remitted to the surrogate for disposition, or as to the orders which we now make, the following spécifications are made of-such matters and will be embodied in the order to be entered hereon :

First. The order opening the ■ decree made by 'the surrogate on the 20th of March, 1899, is reversed and - set -aside, except that the testimony taken thereunder is permitted to be considered and to stand in the record.

Second. The order entered herein by this court on the 11th of July, 1898, is amended nunc pro tune, as of that date, so as to pro^ vide that the evidence given by Thomas Rogers in exoneration of his liability for the misappropriation of the sum of $20,000 and of any other money or property misappropriated by his co-trustee, William Cauldwell, shall be considered as then taken and so stand in the record.

Third. There is remitted to the surrogate of the county of Westchester, for his determination, the question whether Thomas Rogers should be credited with one-third of the sums which have been paid upon the Cauldwell property, being that property which was transferred by Cauldwell to Thomas Rogers after the discovery of his devastavit.

Fourth. There is also remitted to the surrogate, for his determination, the question whether Thomas Rogers should be charged with the sum of $5,000 claimed to have been taken from the trust estate by Cauldwell about January 1, 1897.

Fifth. There is also remitted to the surrogate, for his determina-, tian,. the question as to the amount of money taken from the estate and advanced by the substituted trustee to carry the said Cauldwell property by and with the consent of the substituted trustee and co-operation of the petitioners, also when that amount was advanced, whether from the principal or income of the estate, in what proportions from each fund, and who is properly chargeable there? with, the proof, so far as the same has now been taken, to stand and be considered as a part of the record.

Upon the subjects thus submitted the surrogate is authorized to take further proof offered by either party, so far as it bears upon such questions, but is expressly limited in taking proof to such questions. And the decree of this court, made and entered hereon on the 27th of March, 1900, is hereby amended nunc pro time, as of that date, specifying the particulars in which the questions are remitted to the surrogate for disposition. In the event that such questions are not disposed of in the' ordinary course of procedure, Thomas Rogers is permitted to renew his motion for judgment by this court, or to invoke any other remedy, as he.shall be advised.

It does not seem necessary to discuss any other questions raised before us.

All concurred.

So ordered.  