In the Matter of the Judicial Settlement of the Account of JOHN R. DE VANY, as Executor, etc., of HARRY S. GORDON, Deceased, Appellant. CARLO GORDON and EDITH GORDON, Respondents
APPEAL by John R. De Vany, as executor, etc., from so much of a decree of the Surrogate's Court of the county of Ulster, entered in said Surrogate's Court on the 14th day of November, 1910, as surcharges the account of the executor with the sum of $381.
John J. Linson and James Jenkins, for the appellant.
Howard Chipp, for the respondents.
Harry S. Gordon died leaving a will which was admitted to probate by the surrogate of Ulster county December 15, 1908, and on that day letters testamentary were issued to the appellant, the executor therein named. By the 5th clause of the will Edith R. Gordon was bequeathed $2,500. This legacy was subject to an inheritance tax of $118.70. On the 15th day of May, 1909, the executor advanced to the legatee $1,700 of his own money and took her receipt for $300, the price of a colt belonging to the estate purchased either by her or her husband. The executor testified that the legatee at that time offered to take $2,000 for the legacy, and that sometime thereafter she executed and delivered to him an assignment in blank of the legacy, and a power of attorney, authorizing him to pledge or transfer it for the sum of $2,000; that he did not assign or pledge the legacy, but returned the papers to her on the 20th day of January, 1910, when he went to Pope's Creek, Md., where the legatee resided, and paid her the sum of $381.25, the balance of her legacy, and took her release. The surrogate found that at that time he had paid her $381.25 in cash, and that 'Edith Gordon immediately handed back to said
executor $381.00 of the same moneys so paid her, which said executor retained and still retains,' and 'That said moneys were so paid to and received and retained by said executor because of his having advanced said legatee said sum of $2,000 for her said legacy.'
As a conclusion of law the surrogate found that the sum of $381 retained by the executor belonged to the estate and that he should be charged with that sum in the decree.
The executor contends that if he is in the wrong in retaining the moneys, the wrong is against the legatee, and that in the absence of an objection by her the surrogate was not called upon to decide that question or to surcharge his account with the amount retained by him.
There is no statutory requirement or general rule requiring the filing of specific objection by a party contesting an account. The surrogate has the power on his own motion, with or without a petition or suggestion from any one, to require a judicial settlement of the accounts of an executor or administrator, and after obtaining jurisdiction of the person, to proceed and examine into the account and to settle and adjust the same.
In Wigand v. Dejonge (8 Abb. N. C. 260) it was held that the act of passing the account of an executor is a judicial act on the part of the surrogate, even when no objections are made to the account, and in doing so he exercises that power over trusts formerly exercised by the old Court of Chancery, and where infants are interested in the accounts he is bound to investigate and take charge of their interests as their ultimate guardian.
The only question presented, therefore, is whether or not the account should be surcharged with the moneys which were paid or delivered by the executor to the legatee, and immediately thereafter returned by her to him.
The appellant has cited cases which support his contention, that a voluntary gift is as much protected by law as is a transfer for a full consideration, and that it can be assailed only by parties interested in a court of equity for fraud, undue influences or unfairness. This is, without doubt, the rule, but it is not applicable to the present ...