Opinion
Argued March 12, 1894
Decided March 20, 1894
Barnwell Rhett Heyward and Edwin Countryman for appellant. J. Newton Fiero for respondent.
It is difficult to perceive upon what principle the surrogate determined the liability of Mrs. Pruyn, the executrix, to render an account of her proceedings, upon this application. We are without any opinion by him and we can only suppose he must have regarded the matter much in the same light as does the petitioner; namely, that an accounting is so much a matter of strict right, as to override and render ineffectual this agreement of the parties. We had occasion, in the Matter of Wagner's Estate ( 119 N.Y. 28), to consider the question of the effect of a release, given by a person who was interested in an estate in course of administration, upon a subsequent application to compel an accounting by the executor. The case was a much stronger one than this; for there the petitioner was not the person who had executed the release, but it was his widow and administratrix, and she alleged fraud in its procurement. Here the agreement of release is not attacked upon any ground whatever; but the court is simply asked to disregard it as constituting any bar to the petitioner's right to maintain the proceeding The principle of our decision in the Wagner case ( supra) applies fully here and what we said there we may repeat here; that it is the surrogate's "duty to deny the petition, if it should appear that the petitioner is not, on the face of the proceedings, entitled to the order and he should not permit the executor to be uselessly harassed." By the terms of the release in this case, nothing was left open to question as to the estate in course of administration. The settlement between the parties was of the most complete character and the agreement evidencing it, so long as it stands as their agreement, prevents either of them from setting in motion the machinery of the Surrogate's Court to compel a judicial accounting by the other. The right and interest of each in the estate have been extinguished; except as to any residuary interest of a vested or contingent nature; an exception provided for in the agreement and which affects possible future interests and not the past administration. The appellant, however, endeavors to sustain his proceeding in other ways. He says that an accounting should be had as to certain securities, which were set apart by agreement in 1887, "as a fund to yield an income" for the maintenance of the family residence; the use of which was devised to testator's widow. That agreement was between the same parties; it is not attacked upon any ground and it remains in full force. The petitioner's application was to compel the executrix to render a full account of all her proceedings as executrix and neither did, nor could, contemplate that she should account for the expenditure since 1889 of the income of the fund, so appropriated by their agreement to a specific purpose and which, so far as the record informs us, is held by them jointly. With respect to that they have no claim to call each other to any account in the Surrogate's Court; whatever may be rendered necessary upon the widow's death. The appellant argues that the fact of there being a minor child, who was not a party to the agreement of 1889, imposes upon him the discharge of the duty to compel an accounting by the executrix. It is sufficient to say, as to that suggestion, that the minor has not been brought into the proceeding and, if she had been, it would not have been of any avail to the petitioner in support of his demand upon Mrs. Pruyn for an account of her proceedings. The rights of the minor were not affected by anything that was done and she was not precluded from asserting her rights and from compelling an accounting as to her interests, if she so elected, upon coming of age. The bar to such a proceeding as this by the petitioner, which was interposed by the agreement of release in question, is, while it stands, effectual under all circumstances as between him and the executrix. The questions have been so fully discussed at the General Term, as to render it unnecessary for us to say more than we have.
The order appealed from should be affirmed, with costs.
All concur.
Order affirmed.