In re the Final Accounting of Ermand

Boardman, J.:

The accounts of this executor were settled and distribution decreed February 4, 1879. Nearly a year afterwards the respondents herein, who appear from the decree itself to have been represented upon said accounting and distribution, apply to have said decree vacated and set aside. The surrogate has ordered the entire decree set aside, although but one error is alleged, which relates to the distribution of the income to be derived from the sum of $11,000, to be kept until the death of Mrs. Eliza Howe. We think in this respect, in any event, the order is too broad, and it should be restricted to the error alleged.

But' the appellants insist the decree should not be set aside in any respect: 1st. Because the granting of the order is an extension of the time to appeal and an evasion of the limitation of time in which an appeal may by law be taken, after a hearing and decision by the surrogate of the very question in dispute. 2d. Because no sufficient reason therefor is shown by the moving papers.

The power is undoubtedly given to the surrogate to open a decree, even after the time for appeal has passed, and correct a palpable mistake if the moving party shows fraud, deception or excusable negligence in connection with the alleged error. (Code of Civ. Pro., § 2481.)

The moving affidavits do not show any fraud or deception or bad faith on the part of the executor. There is some conflict as to the question of excusable negligence. Mr. Morrow did, in fact, appear for the respondents when the decree set aside was granted. He objected to the decree in the respect now complained of. He did what any counsel for respondents would have done ; whether well or ill does not appear, except that he failed of success. Mr. Morrow also swears he informed Alexander C. Howe and Mrs. Chamberlain of the decree made, and presented Alexander C. a bill for his services rendered to him and his brothers, and that he heard no objection to the decree or the bill for services until this proceeding was begun. Whether he was in fact retained by the respondents is controverted, and the different statements in .the affidavits are doubtless due to misunderstanding, and not to corruption .on either side. The fact, however, remains that the respondents were represented on the accounting; that the objection to the decree, now complained of, was then made and overruled by the surrogate; that respondent knew in advance of said decree that questions would arise as to the proper .order for distribution, and that, though advised by Morrow as to the terms of the decree, no appeal was taken within the time allowed by law therefor.

Is this, then, a case of inadvertence or excusable negligence, or is it a case of gross negligence ? The plea is, they were ignorant of the law then, have found it out since, and hence this application. Such plea would justify a neglect to appeal in all litigated cases in surrogates’ courts, and the setting aside the decree at any indefinite time in the future, if subsequent adjudications of the courts should show the decree was erroneous when entered.

But if we concede the existence of the power to set aside a decree for such an excuse as the respondents have made, have they shown any plain palpable error to exist ? (Decker v. Elwood, 3 Th. & Cook, 48.) Certainly the affidavits do not show it, except possibly upon information derived from Mr. Miller or some one else. Nor does the learned surrogate attempt to determine whether any error has been committed or not. His order is not founded upon any error that he has found and adjudged to exist, but recites that the original order of February, 1879, “ affects or may affect the rights and interests of said moving parties in a substantial manner, as to which said moving parties claim that the said decree was erroneous, and upon which they ought to have an opportunity to be heard therefore, the order is vacated and set aside. Is that an extraordinary case of undoubted error? No, the decree is not set aside for an actual error found to exist beyond a doubt, but to enable the question to be litigated and determined whether there has been a mistake made in the provisions of the decree entered. This, we submit, does not call for or justify the exercise of the power of the surrogate to s.et aside or open a decree. And, finally, was there in fact any error in the decree vacated ? Because if a wrong has clearly and plainly been done which can be redressed, without injury to others, courts will grant relief, unless by so doing well settled principles of law, adopted for the termination of litigation and to secure repose and quiet, must be violated. This question has not been discussed by the learned counsel for the appellants, he having assumed that the questions already discussed were sufficient for a reversal. We have, however, looked at the statute touching the point in dispute, and conclude the position of the respondents cannot be sustained. It is conceded, as was held by the surrogate, that the direction contained in the will to accumulate the interest on the $11,000, during Mrs. Howe’s life, was void, and that such income was not disposed of specifically. The question then is, does it go with the fund, or is it disposed of by the residuary clause of the will ? The surrogate held it went to the residuary legatees as assets of the estate not otherwise disposed of. The respondents insist that “ where the rents and profits are undisposed of,” they follow the fund and go to “ the persons presumptively entitled to the next eventual estate,” under section 40 of 1 Revised Statutes, 726. They claim the rule in regard to real estate is applicable to personal property under section 2 of 1 Revised Statutes, 773, which reads as follows: “ In all other respects (that is, except as provided in title 4, chapter 4, part 2 of Revised Statutes) limitations of future or contingent interests in personal property shall be subject to the rules prescribed in the first chapter of this act in relation to future estates in land.”

Conceding the premises as claimed by respondents, the answer is, that the rents, profits or income in this case are not undisposed of. If the accumulation were not void the income would go to the appellants at the end of the life estate under the residuary clause of the will. As the direction for the accumulation is void, the income vests immediately in the residuary legatees. It is given to them by the will. It is not undisposed of nor is it given to the respondents. They are only entitled to the $11,000. The provisions of the statute referred to are not then applicable. "We conclude, therefore, that the order of the surrogate should be reversed for the reasons:

First. That no satisfactory excuse is shown for respondents’ neglect to contest the proceedings and appeal from the decree.

Second. That no. error was shown by respondents in their application to have been committed, or so found by the surrogate as a reason for the opening of said decree, and

Third. That no error in fact was committed, and hence the application is without merits.

The order must be reversed, with ten dollars costs and printing expenses, and the motion to set aside or open the decree should be denied.

Present — Learned, P. J., Bookes and Boardman, JJ.

Order reversed, with costs.