Opinion
December 22, 1942.
In an application by the appellant, as life beneficiary of a testamentary trust, for an order compelling the trustees to comply with a decree of the Surrogate's Court, entered August 19, 1938, as amended and supplemented by the several further decrees; requiring the trustees to pay appellant the amounts to which she is entitled under the decrees; directing, by amendment of the decree or otherwise, payment to her of all sums due her from the trustees; directing and allowing issuance of execution against the property of the trustees severally, and for such other, further, or different relief as may be just and proper, order of the Surrogate's Court, Westchester County, denying the application modified on the law and the facts by granting the application to the extent of directing the trustees to comply with the decree of April 6, 1939, and to pay appellant the amounts to which she is entitled under that and the other decrees. As thus modified, the order is affirmed, without costs. The decree of August 19, 1938, which allowed the trustees commissions and costs, has been reversed. ( Matter of Ziegler, 256 App. Div. 305.) The decree of April 6, 1939, which, in conformity with our decision in Matter of Ziegler ( supra) revoked and remitted the commissions and costs originally allowed, is controlling. The Surrogate was powerless to amend the portion of the latter decree withholding the commissions and costs. (Surr. Ct. Act, § 20, subd. 6; Herpe v. Herpe, 225 N.Y. 323.) Permission of the Surrogate is unnecessary for issuance of execution. ( Matter of Mason, 175 Misc. 458.) Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.