Citation Numbers: 1 Dem. Sur. 29
Filed Date: 6/15/1882
Status: Precedential
Modified Date: 2/5/2022
By the will of the decedent, who died in 1850, William V. Le Count was named as his
The court is now asked by the petitioner to require William’s executrix to produce and discover certain books and vouchers, of which she has control, and to deposit the same with the referee. It is not alleged that these documents contain the record of any transactions of the respondent, or that they disclose what assets of John, Le Count’s estate, if any, have “come to her possession or are under her control.” The petition simply declares that William, as executor, kept these books of account and vouchers showing his management of his testator’s estate, and that an inspection thereof will show what amount was due from him as executor at the time of his decease.
Now, these allegations do not seem to me to justify the issuance of the order prayed for. So far as relates to anjr proceedings now pending in this court, it is quite immaterial whether, at the end of his thirty years’ stewardship, William Le Count was or was not indebted to the estate in the sum of $20,000, as the petition declares him to have been, and whether any evidence of such indebted
Section 2606, upon which these proceedings are based, does not empower the Surrogate to exact from this respondent an accounting for all the property which came into the possession or under the control of her testator as executor of John Le Count. By that section, as has been already observed, the accounting which the Surrogate can order, in a case like the present, extends only to such property as has come into the respondent’s own possession, or is under her own control.
As she cannot be held accountable in this proceeding, for the indebtedness of her husband in his capacity as executor, it is profitless to inquire what is the nature and extent of such indebtedness. If it exists, it affords the basis for a claim upon her husband’s estate, for which she, as his executrix, may be cited to an accounting in the Surrogate’s court of Kings county.
As an incident to such a proceeding, this application for discovery might very properly be granted, and the documents whose production is here sought might afford pertinent and important evidence. But they would throw no light upon the question now at issue before the referee, and I must, therefore, deny this application (Montrose v. Wheeler, 4 Lans., 99; Dakin v. Demming, 6 Paige, 95).
Ordered accordingly.