Opinion
April, 1899.
Ward, Hayden Satterlee, for petitioner.
Howard Payson Wilds, for executors.
Motion to permit J.W. Monteith to file additional objections to executor's second account. This matter was submitted to Mr. Surrogate Arnold, but reargued and submitted to me. The motion made herein for leave to file additional objections to the account of the executor raising an issue as to the validity of the payments out of income assessments imposed on the real estate, is granted. A reference will be ordered to determine the objections already filed and those which may be filed in pursuance of the foregoing decision.
Estate of JAMES MONTEITH — This matter was submitted to Surrogate Arnold, but has since been reargued before and submitted to me. The papers show that on December 29, 1891, a decree was entered in this court judicially settling the accounts of the four executors of the will of James Monteith, deceased, which directed that three full commissions, amounting to $3,159.21, be retained by the accounting parties. James W. Monteith, a son of the testator and legatee, was a party to the proceedings, and, together with all other parties interested, and without appearing in person, waived the issuance and service of a citation, and consented to the entry of a decree settling the accounts filed. An effort is now made by him to open and correct said decree by reducing the commissions allowed to $728.08, on the theory that certain specified personal property, which was included in the personal estate of the decedent by the surrogate in determining whether such estate amounted to $100,000 over the debts, was improperly so included, and that the commissions which were allowed thereon were unlawfully so allowed. I do not know upon what theory the decree can be disturbed. Section 2481 of the Code permits the surrogate to open and vacate decrees for fraud, newly-discovered evidence, clerical error, or other sufficient cause; and "other sufficient cause" has been interpreted as meaning causes of like nature with the others specifically named. Matter of Tilden, 98 N.Y. 434; Matter of Hawley, 100 id. 206; see Matter of Humfreville, 8 A.D. 312. The petitioner claims that the surrogate made a clerical error in allowing the commissions in question, but, in my opinion, if he erred, the error was one of law and not a clerical mistake. His decision in the premises was a judicial determination, and whether right or wrong in allowing the commissions objected to, could only be reviewed upon appeal. This court has no power to open a decree for an error of law. Estate of Singer, 3 Dem. 571, as finally affirmed, 100 N.Y. 206; Matter of Tilden, 5 Dem. 230-242; S.C., 98 N.Y. 434.
Application denied.