Smith v. Lawrence ( 1844 )

Appeal from an order of the surrogate of the county of Suffolk. Elias Smith died, and made the respondent L. W. Lawrence, executor of his will, and bequeathed his personal estate to J, W. Smith. Subsequently J. W. Smith also died, having by his will appointed L. W. Lawrence, and the appellants J. L, Smith and others his executors, all of whom qualified. The respondent having neglected to render an account, of the estate of the first testator, his co-executors of the estate of the legatee applied to the surrogate by whom the letters testamentary were granted to the respondent, for an order requiring him to render such account, and he was duly cited to do so. The parties appeared before the surrogate, and the respondent resisted the application upon the ground that as he was a co-executor with the appellants of the will of the legatee, he could not be called on by them to render an account in the surrogate’s court, of the estate of which he was the sole executor. The surrogate sustained the objection and dismissed thb application.

The chancellor held that the appellants, in their characters of executrix and executors of J. W. Smith merely, had such an interest in the estate of E. Smith, as to authorize them to cite their co-executor, in his character of representative of that estate, to account for the administration thereof, and to enable them to ascertain the amount in his hands as such representative which justly belonged to the estate of their own testator.

Order appealed from reversed with costs to be paid by respondent, and proceedings remitted to surrogate.