Opinion
June 8, 1906.
David Eilau, for the appellant.
Harvey De Baun, for the respondent.
A citation was issued to Fanny Collyer, as executrix of Charles S. Collyer, as administrator of Elizabeth Collyer, to show cause why she should not account to and pay over to the court the assets of the estate of Elizabeth Collyer remaining in the possession of Charles S. Collyer, as administrator of Elizabeth Collyer, at his death, and received by the said executrix, and why the said Fanny Collyer, as said executrix of Charles S. Collyer, as administrator of Elizabeth Collyer, should not account in the place and stead of her decedent. The appellant showed these facts: Charles S. Collyer was appointed administrator in 1883. As such administrator he had accounted, and the decrees entered upon the accounting directed him to pay over certain sums of money to various persons, next of kin, including a sum to this appellant. This amount was not paid. Charles S. Collyer died in 1902, leaving a will under which Fanny Collyer became his executrix. The appellant also showed that Collyer had personal property — money in bank to his individual credit which included the money directed to be paid to the appellant under the said decrees. The appellant had demanded in vain the payment of said moneys. Fanny Collyer made answer. I shall not discuss the merits of it, inasmuch as the disposition made by the learned surrogate does not require me to do so.
The learned surrogate held that his court had not jurisdiction to entertain any further order except either a proceeding to punish the administrator, Charles S. Collyer, for contempt (which could not be entertained because he was dead), or an application for leave to issue execution. His view was that the judgment had been entered finally settling the account of Collyer as administrator, and, therefore, he could only enforce that judgment. But Fanny Collyer, perforce of her letters under the will of Charles S. Collyer, did not represent the estate of which the said Charles S. Collyer was administrator; she simply represented the estate of Charles S. Collyer. ( Mount v. Mount, 68 App. Div. 144, and authorities cited.) And so she was but a custodian of any property that came into her hands from the estate of which her husband was administrator. Section 2606 of the Code of Civil Procedure in part provides: "The Surrogate's Court has also jurisdiction to compel the executor or administrator or successor of any decedent at any time to deliver over any of the trust property which has come to his possession or is under his control, and if the same is delivered over after a decree, the court must allow such credit upon the decree as justice requires." (See, too, Mount v. Mount, supra, and authorities cited.) I think, therefore, the surrogate could have determined this application on the merits. The appellant did not merely ask that Fanny Collyer, as executrix, should account once again as to what had been finally decreed during the administration of her husband, but that she should deliver over any of the assets of that estate which had come into her possession or were under her control. I think that the order must be reversed, with costs, on the ground that the learned surrogate had jurisdiction, and that the matter should, therefore, be remitted for a hearing upon the law and the merits.
HIRSCHBERG, P.J., WOODWARD, HOOKER and MILLER, JJ., concurred.
Order of the Surrogate's Court of Westchester county reversed, with ten dollars costs and disbursements, and matter remitted for hearing upon the law and the merits.