In re Burling , 5 Dem. Sur. 47 ( 1887 )

The Surrogate.

It is true that § 2724 of the Code seems to restrict the power of the Surrogate, to entertain or compel an accounting by an administrator, to cases where one year has elapsed since letters were issued to him; and that no provision is made, in that respect, in regard to an administrator with the will annexed, or an administrator de bonis non. In either case, he is called an “ administrator,” and as such, some have supposed he was within the purview of the above section ; and this view, it was thought, was strengthened by 2 R.S., 72, § 22, which provides that an administrator with the will annexed shall observe and perform the will, and shall have the rights and powers, and be subject to the same duties as if he had been named executor in the will. This, it would seem, relates to his future rights, powers and duties. If an inventory has been filed by his predecessor, he cannot be required to file one. If notice was duly given, by the former, to creditors to present claims, and the time limited has expired while he was acting, no new notice should be given by the latter. If the estate is in a condition to be finally settled and distributed when it is devolved on the successor, he may proceed to the accounting at once. He simply steps into the place of the deceased legal representative, and his relations to the estate are precisely the same as those of his predecessor were at the time of his death. He discharges, simply, his unfinished duties; except that the execution of an uncompleted personal trust, or a naked power to sell real estate, will not devolve upon him. There is no such trust or powur involved in this case.

The proceeding for a judicial settlement will be entertained, in accordance with the prayer of the petition.