
    In the Matter of the Judicial Settlement of the Accounts of Frank D. Cook, Administrator with the Will Annexed of James Loomis, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Executors and administrators—-Assignment of legacy.
    Where an alleged assignee of a legacy payable after the death of a certain person made no attempt to give notice of his assignment for ten years, or to present his claim, except to an executor who had been dead fifteen years, he is guilty of laches, and cannot enforce his claim against an administrator with the will annexed, who had in good faith paid the legacy to the legatee.
    2. Same.
    The fact that the account filed in a proceeding to compel an accounting by the executors of his predecessor stated that E. was the assignee of R.'s legacy, and the fact that the accounting filed by the administrator stated that it had been reported that R. had assigned his interest in the estate, but that he had no knowledge respecting the truth or falsity of the report, is not sufficient to show bad faith or neglect of duty on the part of the administrator in paying R. his legacy.
    Appeal by Charles W. Fuller, petitioner, from an order of the surrogate’s court of Ontario county, denying his applicátion to open and amend a decree finally settling the accounts of the admintrator above named.
    
      Moses Shire, for app’lt; D. G. Lapham, for resp’t, Cook; G. D. Read, for resp’t, Rockwell.
   Dwight, P. J.

The testator, James Loomis, late of Ontario county, died many years ago, leaving a will by which he appointed his widow, Nancy Loomis, and one Charles Shepard his executors, and gave a legacy of $900 to the respondent, Adin Rockwell, payable only after the death of the widow. That event occurred in 1891. Charles Shepard, who seems to have been the sole acting executor, died in 1867, and was succeeded, first, by Charles E. Shepard, who died in 1886, and, afterwards, by the respondent, Cook, as administrator with the will annexed of the estate of James Loomis.

In April, 1892, Cook made his petition to the surrogate’s court of Ontario county for a final settlement of his accounts as such administrator; an accounting was had and a decree made accordingly, which, among other things, directed the payment to the legatee, Adin Bockwell, of the legacy before mentioned. That payment, with all others directed by the decree, was duly made, and, by a supplemental order, Cook was fully discharged from duty and liability as such administrator.

Thereafter, and on the 20th day of September, 1892, the appellant, Charles W. Fuller, filed in the same court his petition praying for an order requiring Cook to show cause why the decree above mentioned should not be opened and amended so as to direct him to pay to the petitioner, instead of Adin Bockwell, the legacy in question. In his petition Fuller alleged that on the 1st day of November, 1882, Bockwell duly assigned the legacy to him and that immediately upon the receipt of such assignment he had caused written notice thereof to be given to Charles Shepard, one of the executors of the will of Loomis. The same petition, in tracing the successive administrations of Loomis’ estate, shows, as the fact was, that Charles Shepard died in 1867, fifteen years before the assignment was made; this contradiction of statements is nowhere in the case corrected or explained.

The petition further shows that in 1887 Cook, as administrator, etc., of Loomis, instituted proceedings in the same court to compel an accounting by the executors of Charles E. Shepard, deceased, his predecessor in such administration, and that in the account filed by them, in the schedule which gave the names of persons interested in the estate, was the following entry: “ Adin Bock-well of Bochester, FT. Y., Charles W. Fuller, assignee of interest of Adin Bockwell, residence unknown.” The petition also showed that in the account of Cook, filed for settlement in April, 1892, „ is the statement: “ It has been reported that said Adin Bockwell has assigned his interest in said estate, but I have no knowledge respecting the truth or falsity of said report, and no information as to the name or residence of the assignee if one exists.” The foregoing are all the matters stated in the petition which tend to charge the respondent with notice of the assignment.

The petition was answered by Cook, the administrator, and also by Bockwell, the legatee, who, though not cited under the order to show cause, appeared on his own motion, as he had a right to do. Code of Civil Procedure, § 2731. Cook denied that he had any notice that the legacy had ever been assigned, except by mere rumor, which did not give the name of the supposed assignee; alleges that he made diligent inquiry to ascertain the truth of the report and was unable to obtain any further information on the subject; alleges that he never saw the entry in the account filed by the executors of Charles E. Shepard, nor had his attention called to it Rockwell answers, admitting that he executed an assignment of the legacy to Fuller, but impeaching it for fraud, deceit and duress. No evidence was taken on either side, and the case stands on the undisputed allegations of the petition and the two answers.

On the case thus presented we think the decree of the surrogate’s court denying the prayer of the petition was clearly right, on three grounds: (1) for laches on the part of the petitioner; (2) for want of notice to the administrator before the money was actually paid by him to the legatee; (3) because the surrogate had no jurisdiction to try the question of the validity of the assignment

The laches of the petitioner are shown by the fact that for ten years he made no attempt to give notice of his assignment, or to present his claim, except to an executor who had been dead for fifteen years. If, as he says, he did not know that the deceased executor had been succeeded in the administration of the estate, that of itself shows laches, because the fact could have been learned, at any time, on application to the surrogate of the proper county. ,

We also agree with the learned surrogate that the case fails to show such notice of an assignment to the administrator as to charge him either with bad faith or neglect -of duty in failing to cause the petitioner to be cited to the final accounting. In the absence of such a case against the administrator, a conclusive answer to the petition is found in the fact that the validity of the assignment was positively denied on the return of the order to show cause. The only purpose for which it was sought to open the decree was to substitute a direction for the payment of the legacy to the alleged assignee. This, of course, could not be done until the validity of the assignment was established and the surrogate had no jurisdiction of that issue. Code Civ. Pro., §§ 2718, 2743; In re Brown, 3 Civ. Pro., 39; Strong v. Strong, 3 Redf., 481; In re Martine's estate, 11 Abb. N. C., 54.

Nor was this a c'ase in which the decree should have been opened in order to admit the petitioner as a party to it and then the accounting suspended until the question of the validity of the „ assignment could have been determined in a proper tribunal. For here not only was the accounting completed, but the money in the hands of the administrator had been paid out in accordance with the directions of the decree. This, it is plain, must be a complete defense to the administrator against the liability to pay it again unless, as we have said, he has been guilty of bad faith or neglect of official duty in procuring the settlement and the decree to be made.

The remedy of the petitioner seems to be by action against Rockwell or against Rockwell and Cook, if, as is strongly intimated in the petition, there is ground for alleging that the two were in complicity in procuring the direction of the decree for the payment of the legacy to Rockwell, notwithstanding a valid assignment, without giving an opportunity to be heard.

On the case made by the findings in the surrogate’s court, the order was right and should be affirmed.

Order of the surrogate’s court of Ontario county, appealed from, affirmed, with costs.

Lewis, Macomber and Haight, JJ., concur.  