In re the Estate of Baity

The Surrogate.

Although not distinctly alleged in the petition it may be gathered from the facts stated therein that it is sought to set aside the decree upon the ground of fraud. There can be no doubt that the lunatic was duly cited to attend the accounting, and that he was duly represented by special guardian. Indeed the fact is admitted. The petitioner’s whole case seems to rest chiefly on the fact that no proof was produced to the court showing the judicial sale of John R. Baity’s interest and the purchase thereof by Mrs. Gott. It will be observed that the petitioner nowhere denies such sale and purchase, and does not, therefore, attempt to establish any fraud in that respect. Nor does she allege any newly discovered evidence, or clerical error in the proceeding. It is true that the petition alleges that on the accounting the administrators withheld from the court important facts and statements touching the rights and interests of the lunatic, and made unlawful claims. What facts and statements were withheld ? What were the unlawful claims made by them ? The petition fails to disclose them—to tell us what those facts were, or to show how any claims made were unlawful. Had it been shown that the lunatic’s interest, claimed to have been sold under judgments and purchased by Mrs. Gott six years before he was adjudged insane, and long before she became administratrix, had never been so sold or purchased, a different question would have been presented. Then the decree could have been challenged as fraudulent.

If it were true that there was no proof, or insufficient proof, of the claim of Mrs. Gfott to the share of the lunatic, that fact would not render the proceeding obnoxious to the charge of fraud, clerical error or other like cause, for which the Surrogate, under the provisions of subdivision 6 of section 2481 of the Code, is authorized to open, or set aside the decree. The only remedy would be an appeal. Singer v. Hawley, 3 Dem. 571; affirmed by Court of Appeals, 100 N. Y. 206. But there was proof, whether sufficient or not to warrant the decree, is immaterial. The sale of John R. Baity’s interest under legal proceedings and the purchase thereof, were alleged and set forth both in the verified petition and also in the verified account, and to which, thus challenged, no objection was interposed by the special guardian, or by any other person. This statement was properly made in the account, and uncontradicted, was sufficient evidence on which to base the decree. Dayton says, (Practice, 508,) “ the executor or administrator may also include in the account such statements of any facts or circumstances which may have attended the administration, as he may deem important to a correct understanding of the manner in which he may have performed the duties of his trust, or to a just settlement of the affairs of the estate.” See also Redfield, Practice, 759, 760. The petition and account of proceedings are in the nature of pleadings, and when properly verified are, in general, as to the facts stated, unless questioned, to be regarded as true.

The petitioner herein, the wife of the lunatic, appears to have no legal, interest in the estate which would render her a proper party to the proceeding. Whether validity is rendered to the application by the fact that the special guardian.joins in it, has not received much consideration. It has been deemed best to decide the matter upon its merits.

An order will be entered denying the application.