Appeal from Surrogate's Court, Orange County.
In the matter of the judicial settlement of the estate of Augustus H. Peck, deceased. From an order of the Surrogate's Court, denying a motion to open, vacate, or modify the final accounting decree, Albert F. Peck and others appeal. Affirmed.
[115 N.Y.S. 240] Louis Malthaner, for appellants.
C. E. Cuddeback, for respondent.
Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, JENKS, and MILLER, JJ.
Augustus H. Peck died a resident of Orange county in March, 1907. He left no will, and was survived by his widow, Grace Peck, and three children; the latter constituting the appellants now before this court. Grace Peck was duly appointed as administratrix of the estate. In a safe deposit box were found, among the assets of the estate, five bonds of the Japanese government and two other bonds, all unregistered, aggregating $7,000. These bonds were contained in two envelopes, on which were indorsed, in the intestate's handwriting, declarations that the bonds were the property of his wife, and were not to be accounted for by her in any way. The appellants have brought an action in the Supreme Court to determine the ownership of these bonds, and the present controversy arises over the provisions in the decree of the surrogate of Orange county judicially settling the accounts of Grace Peck as administratrix. The appellants were represented by counsel in the accounting, and the decree was entered by consent. It contains this provision:
" It is further ordered, adjudged, and decreed that upon payment to said distributees [the widow and the three children of decedent] of the amounts thus set opposite to their respective names, that said administratrix be, and she hereby is, together with the surety upon her official bond, discharged and relieved from all further or other liability or responsibility in connection with said estate and to the distributees thereof."
[115 N.Y.S. 241] The appellants moved before the surrogate for an order opening, vacating, or modifying the final accounting decree, the object being to get the above clause modified; it being claimed that it was embarrassing the litigation pending in the Supreme Court above referred to. This motion was denied; the learned surrogate in an opinion holding that:
" While this clause is broader and more sweeping in its terms than should be either permitted or used in decrees discharging executors or administrators, still as a decree has no binding force on any party interested, except as to the matters or items embraced in the account up to and including the date of its rendition, I am unable to see that the applicants have been deprived of any other or further rights which they have or had in said estate which cannot be recovered by an action at law or other proper proceeding."
The learned court cites the provision of subdivision 6 of section 2481 of the Code of Civil Procedure, authorizing the surrogate to exercise the incidental power to " open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court, or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause," and then says:
" The affidavits presented by applicants fail in my judgment to show fraud, clerical error, or other sufficient reason why said decree should be vacated or opened."
In this conclusion, which is practically holding that the surrogate is without jurisdiction to open the decree, we are of the opinion that the learned surrogate is right. The subdivision of the Code of Civil Procedure above cited provides, further, that the " powers conferred by this subdivision must be exercised only in alike case and in the same manner as a court of record and of general jurisdiction exercises the same powers" ; and this clearly requires that the notice of motion or the moving papers should point out the grounds of the motion, whether for fraud, newly discovered evidence, clerical error, or other sufficient cause (section 1289, Code Civ. Proc.), and no such suggestion is to be found in the papers now before us. The notice of motion is for-
" an order in the above-entitled proceeding to set aside the said decree, to authorize and permit the said Albert F. Peck, Mary A. Peck, and Lizzie Peck Courvoisier to interpose objections to the settlement of the said administratrix's account, or that the portion of the decree referred to in the affidavit of Louis Malthaner, hereto annexed, be stricken out, and for such other or further relief," etc.
The provision of the decree referred to is the one quoted above, and the affidavits do not suggest that the administratrix has been guilty of any fraud in the procuring of the decree, or that there has been any newly discovered evidence, clerical error, or other sufficient cause, as that term is judicially understood. In Matter of Henderson, 157 N.Y. 423, 428, 5 ...