
    In the Matter of the Estate of Seabury Tredwell, Deceased. Samuel Lenox Tredwell, Individually, and as Trustee under the Will of Seabury Tredwell, Deceased, and as Administrator with the Will Annexed of Seabury Tredwell, Deceased, Appellant; Susan W. Nichols and Others, as Executors, etc., of Effingham H. Nichols, Deceased, and Others, Respondents.
    
      Revivor of a proceeding for an accounting by an executor who dies while it is pending — notice to all parties in interest—power of a surrogate, on an application to vacate an order, to grant other relief.
    
    A proceeding by Effingham H. Nichols for a judicial settlement of his accounts, as executor under the will of Seabury Tredwell, deceased, abated by the death of the said Nichols. Thereafter Samuel Lenox Tredwell, individually and as trustee under the will of Seabury Tredwell, deceased, and as administrator with the will annexed of Seabury Tredwell, deceased, upon notice to all the parties interested, obtained an order directing Nichols’ executors to file an account of their testator’s proceedings as executor of Seabury Tredwell, deceased. While this accounting was pending, Nichols’ executors obtained an ex parte order reviving the proceeding for an accounting instituted by their testator.
    Upon the return of the citation to attend such revived accounting, issued pursuant to the ex parte order, the surrogate, upon a motion made, under a citation returnable the same day as the citation issued under the ex parte order, by Samuel Lenox Tredwell, individually and in his capacity as trustee and as administrator with the will annexed, to vacate the ex- pan te order, held that, while the order reviving the proceedings should not have been granted ex pa/rte, all the parties being then before the court, the order of revival could be granted, and for that reason refused to vacate the ex parte order.
    
      
      Held, that all the parties interested in the estate were entitled to notice of any application to revive the original accounting, particularly as the question whether the surrogate had power to revive such proceeding was not free from doubt;
    That the surrogate had no power to turn the application to vacate the ex parte order into one to revive the proceeding and grant the motion for revival, but. that he should have vacated the ex, parte order.
    Appeal by Samuel Lenox Tredwell, individually, and as trustee under the will of Seabury Tredwell, deceased, and as administrator with the will annexed of Seabury Tredwell, deceased, from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 1st day of July, 1902, denying his motion to vacate an ex parte order reviving a final accounting commenced by Eífingham H. Ni.chols, as executor, etc., of Seabury Tredwell, deceased.
    
      Thomas Abbott MeKennell, for the appellant.
    
      J. Tredwell Richards, for the respondents.
   Ingraham, J.:

The facts that are necessary to determine the legal questions presented. upon this appeal are as follows: Seabury Tredwell died in the year I860 ; his will was duly admitted to probate on the 17th day of April, 1865, and letters testamentary were thereupon issued to Effingham H. Nichols,, one of the executors named therein, on the 17th day of April, 1865. The executor seems to have filed several accounts, the last and final account having been filed on the 27th day of June, 1895, when, upon the petition of the executor, all of the parties interested were cited to appear in the proceeding. Objections to the accounts were duly filed, and on the 8th day of August, 1895, an order was entered referring the accounts to a referee. This reference proceeded before the referee, a large amount of testimony was taken, and certain questions were submitted to him. Before the referee had made and filed his report, and about the 4th day of November, 1899, Effingham H. Nichols, the executor, died, leaving a last will and testament appointing the respondents executors. The proceedings upon this accounting then appear te have been dropped, and subsequently letters with the will annexed upon the estate of Seabury Tredwell were issued to the appellant. Samuel Lenox Tredwell. As such administrator with the will .annexed, as trustee under the last will and testament of Seabury Tredwell, and individually, he presented an application to the surrogate, asking that the executors of the last will and testament of Effingham H. Nichols, the deceased executor of Sea-bury Tredwell, be required to account for the acts and proceedings of the said Effingham H. Nichols, as executor of the last will and testament of Seabury Tredwell, deceased; and in pursuance of that application, upon notice to the executors of Effing-ham H. Nichols, deceased, and all the parties interested in the ■estate, on the 25th day of March, 1902, after hearing the attorneys for the executors and others who appeared, a decree was entered whereby it was ordered, adjudged and decreed that Susan W. Nichols and others, as executors of the last will and testament of the said Effingham H. Nichols, deceased, “ do, on or before the 18th day of April, 1902, make, render and file in the office of the clerk of this ■court an account of the proceedings of the said Effingham H. Nichols, as executor of the last will and testament of Seabury Tredwell, ■deceased, for the purpose of having the said account judicially settled.” Subsequently a motion was made by the executors of Effing-ham H. Nichols to vacate this decree, which motion was denied and an order entered on the 9th of June, 1902, and from, this order no appeal seems to have been taken. On the 11th day of June, 1902, one of the executors of the last will and testament of Effing-ham H. Nichols, the deceased executor of Seabury Tredwell, filed in the office of the Surrogate’s Court an account of the proceedings •of the said Nichols as such executor, as required by the decree of March 25, 1902 ; and on the 18th day of June, 1902, objections to such account were duly filed in the Surrogate’s Court by the appellant, individually, as trustee, and as administrator with the will annexed of Seabury Tredwell, deceased, and an order was subsequently entered referring the said account and the said objections to a referee. On the 16th day of April, 1902, however, the executors of Nichols, the executor of Seabury Tredwell, had presented a petition to the Surrogate’s Court setting up the institution of the accounting by Nichols as executor of Seabury Tredwell, and the death of Nichols, and upon that petition obtained from the surrogate an ex parte order, which revived the said proceedings instituted by Nichols, the deceased executor of the last will and testament of Seabury Tredwell, deceased, for a final accounting, so that the court could proceed with such accounting and determine all questions and grant any relief that it would have power to determine or grant in case such decedent had not died, and could judicially settle the accounts so filed, and directed the issuance of a citation requiring all parties interested in the estate to attend such settlement of the accounts. Subsequently, on the 13th day of May, 1902, the appellant, individually, as trustee, and as administrator with the will annexed of Seabury Tredwell, made a motion to vacate the order of April 16, 1902, and also to punish the said executors of Nichols for a contempt of court in having failed and neglected to file the accounts of the said Nichols as executor of the said Seabury Tredwell. That motion came on to be heard upon the return day of the citation issued under the order of April 16,1902, and the surrogate seems to have held that the order reviving the proceedings should not have been granted ex parte, but should have awaited the return of the citations, but that all the parties then being before the court, the order of revival could then be granted, and that for that reason the expa/rte order of April 16, 1902, should not be vacated; and thereupon an order was entered reciting all of the proceedings, and after hearing counsel for Samuel Lenox Tredwell, individually, as trustee, and as administrator with the will annexed, in support of the motion to vacate the order of April 16, 1902, reviving the proceedings, and in opposition to such citation issued pursuant to such order, and on motion of J. Tredwell Richards, attorney for the said executors of said Nichols, the motion to vacate the order reviving the proceedings was denied, and it was further ordered that the said proceedings for an accounting commenced by Nichols as such executor and trustee on the 27th day of June, 1895, be and the same were revived against his executors, and that the said accounting proceed.

We think that the court below should have granted the motion to vacate this ex parte order reviving these proceedings. When the application for this order of April 16, 1902, was made, the appellant had presented an application to the court and obtained an order upon notice to the executors of Nichols to render an account of Nichols’ proceedings as executor of Tredwell, deceased. All the parties interested in the estate were by that proceeding before the court, and were entitled to notice of any application to revive a proceeding which had abated by the death of the executor who had instituted the proceeding for an accounting. • Whether or not that proceeding should be revived was a judicial question to be determined by the surrogate, and whether or not the court had power te revive the proceeding was a question not free from doubt. The proceeding for an accounting had abated in the year 1899, at which time there was no authority for reviving such a proceeding that had abated by the death of the accounting party. In the year 1901, by an amendment to section 2606 of the Code of Civil Procedure, a provision was inserted that “ on the death of any executor, administrator, guardian or testamentary trustee, while an accounting by or against him as such is pending before a surrogate’s court, such court may revive said proceeding against his executor, administrator or successor, and proceed with such accounting and determine all questions and grant any relief that the surrogate would' have power to determine or grant in case such decedent had not died.” (Laws of 1901, chap. 409.) This provision was not retroactive, and would not have authorized the revival of a proceeding that had abated prior to its passage. By an amendment of this section in 1902 (Laws of 1902, chap. 349) it was made to read: “ On the death heretofore or hereafter of any executor,” etc. So the Surrogate’s Court undoubtedly had power when the ex parte application was made to revive the proceeding, unless this provision is subject to the constitutional objection which is insisted upon by the appellant. But before such relief could be given, the administrator with the will annexed of the testator, and all those who were parties to the proceeding that had abated, were entitled to notice of the application, and this is especially so in this case, as, prior to the time the application for this ex parte order was made, a proceeding, on notice to the representatives of the deceased executor, to compel an accounting had been commenced and was then pending. The learned surrogate recognized that this application was improperly made ex parte, but upon the return of the citation required by the ex parte order granted an order reviving the proceeding. But we do not think that that can be sustained, because the citations that had been issued and served upon those interested in the estate did not require these persons to show cause why the proceeding should not be revived. The order reviving the •• proceeding was absolute, and the citations only required •an attendance on. the accounting. The parties to the proceeding were not given notice that on the return of this citation an application would he made to revive the proceeding, and it was this notice that they were entitled to before the surrogate should grant an ■order reviving it. It is true that this appellant, who alone appeals from the order denying the motion to vacate this ex parte order of April 16, 1902, attended and was heard on that motion, but. the motion that he was heard upon was his motion to .vacate the ex parte order. Ho notice seems to have been given to him that an •application would then be made to the surrogate to revive the proceeding. The parties were before the court on the motion to vacate the exponte order, and he was not there to be heard upon •an application to revive the proceeding. The appellant had moved to vacate the ex parte order reviving the proceeding — an order that had been irregularly granted — and it was error to turn that application to vacate that order into one to revive the proceeding, •and then grant that motion, when no notice of an application for •such relief had been given to him or to others interested in the •estate.

For this reason, without passing upon the other questions presented, we think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the •exporte order of April 16, 1902, granted, with ten dollars costs.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., ■concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  