In re the Judicial Settlement of the Account of Proceedings of Duncan , 168 N.Y.S. 289 ( 1917 )

Scott, J.:

We are of the opinion that under the circumstances of this case, the order appealed from was right. The accountants are the executors of an executor and as such seek the judicial approval of the accounts of their testator, and relief from the custody of the property left unadministered by him. Of such property they are merely the custodians possessing with respect thereto none of the executorial powers and functions which appertained to their testator as executor. (Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 121, as added by Laws of 1909, chap. 240; Matter of Hayden, 204 N. Y. 330.) They are not the successors of their testator as executor and have no power either to collect or to distribute the estate. Such power would be vested in an administrator c. t. a., if one were appointed, but none has been appointed and apparently none of the parties in interest desire that one should be appointed. At least no move in that direction appears to have been made.

In our opinion the judgments of the Supreme Court relied upon by the appellants, in so far as the now deceased executor of the estate of Martha M. Williams, deceased, was directed to make distribution to the creditors of Stephen C. Williams, deceased, are not binding upon these accountants and they should not be burdened with the duty of making such distribution, even it were .legally possible for them to do so, which is at least doubtful.

In the absence of an administrator c. t. a. of the estate of Martha M. Williams, deceased, the obvious and only practical way to provide for the distribution of the unadministered assets of her estate among her brother’s creditors is to order those assets to be turned over to. the receiver of the estate of said brother whose right and duty it will be to realize upon the assets and make proper distribution thereof.

The order appealed from is right and must be affirmed, with ten dollars costs and disbursements to the petitioners, respondents.

Clarke, P. J., Laughlin, Dowling and Shearn, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.