Opinion
May 15, 1967
Decree of the Surrogate's Court, Westchester County, dated June 14, 1966, modified, on the law and the facts, by (1) striking from the second decretal paragraph the provision directing withholding of payment of the executor's commissions, fixed at $1,864.24, "until he has received and accounted for overpayments made on account of the Federal and State Income Taxes for the year 1964 and the Estate Taxes due from Christine Matzuga" and by substituting therefor a provision authorizing the executor to retain said commissions out of the balance remaining in his hands; and (2) striking from the last decretal paragraph the provision that the executor "shall remain charged with" the overpayments on account of the above-mentioned income taxes and the estate taxes due from Christine Matzuga. As so modified, decree affirmed insofar as appealed from, with costs to appellant payable out of the estate. Appeal from order of said court dated October 19, 1966 dismissed as academic, without costs. Respondent, the residuary legatee, filed a number of objections to the account of appellant executor. Involved here are objections IV and V, which alleged in substance that Federal and State income taxes for 1964 had been overpaid and that the account did not state whether claims for refunds had been filed. The matter was settled during the hearing before the Surrogate whose decision, rendered thereafter, stated that objections IV and V "were withdrawn on condition that the executor apply for refunds with respect to payments made on account of [Federal and State] income taxes". It is uncontradicted that the executor complied with that condition. The decree under review, however, not only provided that the executor should apply for refunds on account of the tax overpayments but also, in effect, made him personally liable for the amount of such overpayments. In our opinion, that surcharge was improper, since the objections with respect to the overpayments were no longer in effect. "The petition for an accounting and the objections thereto are pleadings similar to a complaint and an answer and they define the issues and limit the relief. (Surr. Ct. Act, § 49; Matter of Kilborn, 232 App. Div. 580, 582; Matter of Hearns, 214 N.Y. 426, 432.) A surcharge may not be predicated on a ground neither alleged nor proved" ( Matter of Doelger, 254 App. Div. 178, 182, affd. 279 N.Y. 646). The settlement made without any suggestion of fraud or bad faith should be enforced ( cf. Matter of White, 182 Misc. 223, 226-227, affd. 268 App. Div. 759). We are of the opinion that the provision of the decree making appellant personally liable for the proportionate share of the estate tax due from Christine Matzuga was also improper. The refund due from her was not the subject of any objection; there was no discussion of that question at the hearing; and the Surrogate's decision made no reference thereto ( Matter of Doelger, supra). We are also of the opinion that, on the record presented, there was no justification for withholding payment of appellant's commissions, as fixed in this decree settling his account. Ughetta, Acting P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.