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5 Thomp. & Cook 10

Yale v. Baker

New York Supreme Court

Decided October 15, 1874

New York Supreme Court · decided 1874-10-15

Yale, administrator, with the will annexed, etc., of Henry H. Van Burén, deceased, for a re-settlement of the accounts of his predecessors Jeremiah S. Baker, executor, and George R. Sanford and Sarah A. Van Burén, former administrator and administratrix with the will annexed of said testator. The testator died in 1868. His will, in which the above-named executor was appointed, was duly proved and letters testamentary issued.

Relies on N.Y. N.H.R.R. Co. v. . Schuyler · Beall v. New Mexico · Campbell v. Thatcher

Decided 1874-10-15

Gilbert, J.

¶1The accountings sought to be opened were all had before the surrogate who made the order appealed from. It now appears that the inventory of the estate of the decedent and most of the vouchers filed in the office of the surrogate, upon such accountings, have been lost. It would be a great hardship to the predecessors of the petitioner to compel them to account over again under such circumstances, and it is manifest that an order compelling them to do so might work great injustice. Upon the evidence before us, therefore, we should not be disposed to interfere with the discretion exercised by the surrogate But we are satisfied thai the order should be affirmed upon the ground that it is not within the province of the petitioner to institute such a proceeding. An administrator de bonis non may sue to recover goods unadminis*12tered, but he has no power, nor is it any part of his duty to overhaul the accounts of his predecessors in the trust. The latter are liable only to the creditors or next of kin. Nothing would be concluded or settled in the surrogate’s court if the rule were otherwise. Beall v. New Mexico, 16 Wall. 535; Potts v. Smith, 3 Rawle, 361; Young v. Kimball, 8 Blackf. 167; Marsh v. People, 15 Ill. 285; Goodyear v. Bloodgood, 1 Barb. Ch. 617.

¶2Another insuperable obstacle to the maintenance of the petition is that the errors which it alleges would require a mere review by the surrogate of his former decrees. This can be done only by appeal. The surrogate, we think, acquired jurisdiction to make the decrees. No fraud in procuring them is alleged, and the errors suggested rest upon facts, which are not positively stated, and are not apparent in the proceedings. Moreover, they are positively denied by the respondents and they could be established only by extrinsic proof. In such a ease the surrogate has no power to open a decree. Brick's Estate, 15 Abb. 30; Sipperly v. Baucus, 34 N. Y. 49; Campbell v. Thatcher, 54 Barb. 383; Decker v. Elwood, 3 N. Y. Sup. 48.

¶3The order appealed from must be affirmed, with costs.

¶4Order affirmed.

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