Farmers' Loan & Trust Co. v. Hill

The Surrogate.

Counsel has submitted elaborate arguments as to the proper construction of the will of the deceased; it being urged, on behalf of the petitioner, that the will contemplated the payment of one half the residuum to the children on the death of the mother; and, in opposition, it being contended that the executors were legally directed, by the decree on the accounting, to retain the whole estate, in order properly to carry out the intentions of the testator. Hence, it is manifest that this court is asked to thus review a decision it has already made, upon a pure question of law. Counsel for the executors object that this cannot be done. The objection, in view of the decisions, In re Tilden (98 N. Y, 434), and Singer v. Hawley (3 Dem., 571), recently affirmed by the Court of Appeals (100 N. Y., 206), seems to be well taken. A copy of the opinion delivered by the latter court, in that case, has been furnished, with a view of showing that it was there held that every court of record has an inherent power over its own records, to modify, amend, and vacate them, independently of the special power conferred by statute. But that court holds no such doctrine. It simply says that if a court of record has such power, it belongs exclusively to the court whose records are in question, and cannot be exercised for it by an appellate tribunal. Subd. & of § 2481 of the Code seems to have been framed mainly to expressly confer upon Surrogates’ courts the powers which, it had been already held by the courts, they incidentally possessed (Sipperly v. Baucus, 24 N. Y., 46, and cases cited). There is, in the petition, no allegation of fraud, newly discovered evidence, clerical error, or anything of that character. The real allegation is that an error of law was committed in construing the will. Such an error, if it exist, this court has had no power conferred upon it to correct. It is still a court of special and limited jurisdiction, and has not, as I think, the broad power to deal with its records as to it may seem fit.

It is not denied that the proceedings, which led up to the decree in question, were strictly regular. All in interest were duly cited, and the minors were properly represented on the accounting. It is true, the petitioner alleges that it was not a party to the accounting, but it was not, at the commencement of the proceeding, the guardian of the minors, and those minors were properly cited, as the paper shows.

Motion denied, with ten dollars costs.