
    
      In re Filley’s Estate.
    
      (Surrogate’s Court, Rensselaer County,
    
    
      Filed June, 1892.)
    1. Surrosate’s Courts—Order to show cause—Practice.
    Although section 780, Code Civil Procedure, providing for shortening the time for notice of motion to less than eight days, by an order to
    show cause, is not directly made applicable to the Surrogate’s Court, the practice is well settled that the Surrogate’s Court may employ an order to show cause to shorten time of notice.
    2. Bond of executor—When time to file it mat be extended.
    The surrogate ha.s no authority to extend, as a matter of favor, the time of an executor to file his bond under Code Civ. Pro. sec. 2687, beyond the five days therein provided, yet he may, under Code Civ. Pro. secs. 724, 2538, relieve a party from an order taken against him when he can show it occurred through mistake, inadvertence, or excusable negligence, and the same relief may be obtained under Code Civ. Pro. see. 2481, subd. 6, for fraud, newly discovered evidence, clerical error, or other sufficient cause.
    3. Same—Newly discovered evidence.
    A decree having been made, under Code Civ. Pro. sec. 2687, requiring an executor to give bond within five days, it will not be reopened under Code Civ. Pro. see. 2481, subd. 6, on the ground of the alleged newly discovered evidence that real estate which the' executor on the application for the bond, alleged to be of less value than stated, and in respect of which he subsequently furnished proof that it was, upon the assumption that it belonged to testator at the time of his death, of a certain value, had been really conveyed by the decedent to the executor, who conveyed it to another, when such facts were obviously known to the executor at the time of the application.
    4. Same—Extent of executor’s liability.
    The court may require a bond from an executor covering property alleged to have been fraudulently conveyed by his decedent.
    5. Deed—Delivery.
    The fact that a deed from a testator to his son, who is also his executor, is in possession of latter, is not evidence of delivery, as the executor might have come into possession of the deed in his character as executor, especially when there is an absence of any fact to support the presumption of delivery beyond the bare possession by the executor, and there is no proof of prior negotiations upon the subject of transfer, but there is proof that he was, at his death, in possession of the property.
    A decree having been made on the petition of a creditor of Marcus L. Filley, deceased, requiring the executor to give a penal bond in the sum of $32,000 or, in default, be removed from his office, the executor, Marcus L. Filley, Jr., made a motion requiring the creditor, Horace Staples, to show cause why the penalty should not be reduced to $8,000. Denied.
    R. A. Parmenter, for executor; Henry A. King, for creditor.
   Lansing, S.

The first question for examination is the objection that section 780, Code Civil Pro-., which provides for shortening the time for notice of motion to less than eight days by an order to show cause, etc., is not made applicable to the Surrogate’s Court; and subdivisions 4, 6, section 3347, of the Code, are cited in support of the position. I am inclined to think that section 780 is not directly made applicable to the Surrogate’s Court. This section contains the general Code provisions upon the subject of time of notice of motion, and provides it shall be eight days, unless, etc. If the section is not applicable to tire Surrogate’s Court, then, in the absence of any other provision (and I have been able to find none), a notice of motion in this court could be made without special limit as to time of service of notice, etc. But, in the absence of such provision, perhaps subdivision 11 of section 2481 would apply, which provides, in effect, that where jurisdiction is given in any matter to the Surrogate’s Court, and the practice is not prescribed, it shall proceed “according to the course and practice of a court having by common law jurisdiction of such matters.” But, whatever the warrant for the practice of employing an order to show cause to shorten time of notice, the practice is well settled in Surrogate’s Courts to employ it, and it has been so employed both before and since the adoption of the new Code. Redfield, in his work on Surrogate Practice (4th ed.), p. 57, says: “The proceeding to vacate a decree under section 2481,. subd. 6 [where this application is unquestionably made], iimproperly initiated by a notice of motion or order to show cause.” See, also, Cluff v. Tower, 3 Dem. Sur. 253. For the purposes of this application I shall hold the practice proper.

I am satisfied that the next objection of the creditor, that the Surrogate has no authority to extend the time of the executor to file his bond beyond the five days provided in the order, is technically well founded. But, while the surrogate may not extend the five days fixed by section 2687 in which to file bond to six or ten days, he may, in a proper case, under Code, sections 724, 2538, relieve a party from an order taken against him when he can show it-occurred through “mistake, inadvertence, or excusable negligence,” etc.; and the same relief may be obtained in certain cases hereafter mentioned under section 2481, subd. 6, above cited. But under either section relief must be obtained, if at all, not as a matter of favor, but for the specific reasons or upon the grounds provided in the statute. This disposes of the preliminary objections, and brings us to' an examination of the question whether the executor has presented a case authorizing the surrogate to open or modify the decree made herein on the 7th day of May, 1892, adjudging the executor’s pecuniary circumstances to be such as not to afford adequate security for the due administration of the estate of the deceased, and requiring him to file a bond in the penal sum of $32,000 within five days, or, in default thereof, that his letters testamentary be revoked. Section 2687 of the Code of Civil Procedure provides that if, upon the return of the citation issued under section 2686, the objections to the executor, or any of them, mentioned in section 2685, “are established to the surrogate’s satisfaction, he must make a decree revoking the letters issued to the person complained of. But the surrogate may, in his discretion, * * * allow letters to remain unrevoked * * * [subdivision 3] where the case is within subdivision 5 of that section” (2685)— that is, where the executor is pecuniarily irresponsible—“if the executor gives within a reasonable time, not exceeding five days. the bond prescribed in article first of this title.” The surrogate appears to have no discretion as to time in which to file a bond in the first instance, if he finds the objection sustained.

The direction of toe surrogate of the 10th of Hay, 1892, was a decree (section 2687, supra), and this decree was the deliberate and formally expressed judgment of a court having entire jurisdiction both of the person and subject-matter involved. The decree adjudged (1) that the circumstances of toe executor did not afford adequate security to the creditors for the due administration of the estate; and, (2) that the value of the property belonging to the estate at toe time of testator’s death was $16,000. I am satisfied that this decree must remain, unless appealed from, or unless the case can be brought within section 2481, subd. 6, of the Code, which provides that this court may open, vacate, or modify its decree or order and grant a new hearing for “fraud, newly discovered evidence, clerical error, or other sufficient cause,” but with the qualification that “the powers conferred by this subdivision must, be exercised only in like cases, and in the same manner, as a court of record and of general jurisdiction exercises the same powers.” This application must rest upon the ground of “newly discovered evidence.” The ground “other sufficient cause” will not avail to support an application for the introduction of evidence under this section, where its only claim for consideration, in the nature of things, is that it is newly discovered. How, what are the facts appearing on this application as to- toe ground of newly discovered evidence % The creditor alleges in his petition the ownership of the property (the mansion house in Lansinghurgh) in the testator, and its value. A postponement of several days was sought by Hr. Tilley, the executor, for the purpose of submitting to the court proof in regard to the value of the same real estate (he alleging it to be of less value). Proof was subsequently furnished by the executor (without any denial of toe fact, and upon the assumption that the real estate in question belonged to the testator at the time of his death) that it was of toe value of $9,000. The fact, if fact it be, that this real estate had really been conveyed to Marcus L. Filley, executor, by his father, prior to his decease), and had been, by him individually conveyed since the institution of this proceeding to the alleged grantee, Garter, was well known to Mr. Filley, and known prior to the time the decree was made, and the fact was obviously suppressed by him. Clearly it is not a case of newly discovered evidence. (1) The opening of a surrogate’s decree, formally and lawfully made, requires the exercise of the soundest discretion. (2) It should only be done in extraordinary cases, and where errors are plain, palpable, and beyond any question. Decker v. Elwood, 3 Thomp. & C. 48; Dedf. Law & Pr. Sur. Cts. (4th ed.) p. 58, and cases cited. It is well settled that a motion to open an order or decree in Surrogate’s Court should be' entertained only on newly discovered facts, showing that it was made without jurisdiction or through inadvertence, mistake or fraud. Janssen v. Wemple, 3 Redf. 229. “Where a party has had his day in court, he must show that it was not his fault that he did not improve it, before he can get another day on the same matter.” In re Estate of O’Neil, 46 Hun, 501. The discovery of further evidence in an account book, which was in possession of the party pending the litigation, prior to the decree, cannot be deemed newly discovered evidence upon which the decree should be opened. Olmsted v. Long, 4 Dem. Sur. 44. See, also, In re Kranz, 41 Hun, 465; In re Tilden, 98 N. Y. 434; In re Hawley, 100 N. Y. 206, 3 N. E. Rep. 68. I am1 satisfied from an examination of the authorities that the surrogate is utterly without power to vacate or modify the decree made herein. Orders and decrees in Surrogates’ Courts are placed upon precisely the same footing as those in other courts of record, and the power conferred to open or modify “must be exercised only in like cases as a court of record and of general jurisdiction exercises the same power.” It will hardly be claimed that the facts appearing upon this application would warrant the granting of a new trial in the Supreme Court, on the ground of newly discovered evidence. There is, therefore, no ground stated in the moving papers which would warrant a new hearing, or authorize a modification of the order or decree granted in this matter, and I can conceive of none which could he added from the facts disclosed. The executor well knew the fact, the introduction of which he now seeks as a ground for the modification of the decree, before the application was made. Indeed, I am sure he has not been surprised or misled, for it was stated upon the hearing that the bond in the amount directed would have been given if the executor had been able to do so. These views lead to a denial of the motion for a new hearing or for a modification of the bond.

Two other questions involving the merits were discussed upon the motion, which, in the view I have taken, are not necessarily involved in the decision of this motion, yet, as the result of my examination of these questions tends to support the conclusion I have reached upon the more technical ground, it may not bo improper to discuss them briefly.

First. As to the question of requiring a bond covering property alleged to be fraudulently conveyed. I am satisfied that while the decision in Peck v. Peck, 3 Dem. Sur. 548, holding “that the Surrogate’s Court, in fixing the bond of the executor, should not take into consideration any property of the title to which the testator or intestate had divested himself during his lifetime, whether a transfer was procured by fraud or otherwise,” states the general rule, yet there is no such hard and fast rule upon the subject, since in some cases the main object in taking out letters is for the purpose of recovering property fraudulently conveyed. Laws 1858, ch. 314, sec. 1, as amended, Laws 1889, ch. 487. “And [it is held] in any case an executor is chargeable with breach of trust for neglect in instituting any action or proceeding necessary to recover assets fraudulently disposed of by his decedent.” In re Cornell, 110 N. Y. 351, 18 N. E. Rep. 142; Hangen v. Hachemeister, 114 N. Y. 566, 21 N. E. Rep. 1046. In such cases, at least, bonds should be required covering the amount of probable recovery, and the statute seems to contemplate the exaction of the same by the proper court.

Second. Upon the remaining question, whether the said real estate belonged to testator at his decease, it would seem, under the authorities (aside from all considerations pointing to a fraudulent conveyance), that the proof offered comes far short of showing a transfer of the legal title from the testator before his death. The deeds in question are not recorded. A deed, to convey title, must not only be duly executed, but must be ■delivered. The fact that the deed from the father, the testator, to the son, is in the possession of the son, who is his executor, does not furnish the necessary proof that it was delivered to the .son as grantee during the lifetime of his father, because, if not delivered, he, as executor, would be likely to come into possession of it. In fine, therefore, the absence of .any proof of prior negotiations upon tire subject of transfer, and the absence of any fact to support the presumption of delivery beyond the bare possession of the deed by the executor after death of testator, with the added fact that M. L. Eilley, Sr., was at the time' ■of his decease in possession of the property, would seem to reouire something further to establish that said instrument was delivered by the grantor with intent to convey title prior to his •death. Knolls v. Barnhart, 71 N. Y. 474; Gifford v. Corrigan, 105 N. Y. 223, 226, 11 N. E. Rep. 498.

But, as I have before stated, a decision of the two questions last above discussed are not necessarily involved in the decision of this motion, since I am compelled to hold, under the authorities, that the presentation of the deeds upon this application ■cannot in any just sense be termed “newly discovered “evidence,” so that no ground appears which will warrant the opening or modification of the decree. Motion to vacate or modify the decree of May 10, 1892, denied, with $10 costs of motion, and, upon filing proof that the executor failed to file his bond as required by said decree, a decree may be entered vacating the letters testamentary heretofore issued to said executor.  