Warren S. Peck, Executor, etc., Appellant, v. Susan T. Sherwood, Respondent

Warren S. Peck, Executor, etc., Appellant, v. Susan T. Sherwood, Respondent. A legatee presented to the surrogate a petition praying that the executor he ordered to appear and render an account, and that such-further or other proceedings be had as might be necessary to enforce the payment of her claim. Upon this petition an order was granted that the executor “render a settlement,” and a citation was issued thereon requiring him to appear and render an account.” KM, that the petition was sufficient-, under the statute (2 R. S., 116, § 18), to give the surrogate jurisdiction over the subject-matter; and having obtained jurisdiction.of the person of the executor by the order and citation, he had power to proceed and ■xamine into the account and to settle and adjust the same, so far as to etermine how much should be paid to the petitioning legatee. ‘ "le it is a proper and a better practice to object specifically- to the items of -•i executor’s account which it is meant to question, yet under a general objection to any and all of the items, the surrogate can inquire into and scrutinize the account, and is not bound by the executor’s oath thereto, or the vouchers produced by him. A municipal assessment for the flagging of sidewalks is'not in the nature of an annual tax, to be paid entirely by a tenant for life of the-premises assessed. Nor is it such a permanent improvement as that he should not contribute to its payment, but it should be apportioned between ' him and the remainderman. So, also, of the expense for insurance of the buildings and placing lightning-rods thereon. Under a devise of a life estate, remainder to an executor in trust, the joining with the tenant for life in the insurance of the buildings upon the premises devised, and in the protection of them by lightning-rods, are proper and judicious acts on the part of the executor, which he is authorized to do, and he is entitled to be allowed the proportion properly chargeable to the trust estate. (Argued February 13, 1874; decided February 24, 1874.) P. devised to his wife a life estate in his real property, and in all his personal property save a certain legacy coming to him from the estate of a relative. After his death the widow remained in the dwelling-house enjoying the use of the personal property, and received $188 from the moneys of the estate. Held, that she was not entitled to an allowance for forty days’ sustenance, nor to $150 for household furniture. This was an appeal from a judgment of General Term, affirming a surrogate’s decree fixing the- amount to be paid by appellant, as executor of the last will and testament of Benjamin Peck, deceased, to respondent, a legatee. „ Benjamin Peck died April 10, 1864, seized of certain real estate, including his homestead; also of household furniture and other personal property. He was also entitled to a legacy of $5,000, bequeathed to him by a relative, and not then paid over. He left a will by which he devised and bequeathed to his wife all his real and personal property for life, except the legacy, remainder with the legacy to appellant, his executor in trust, to sell, dispose of, collect and divide the proceeds among certain legatees named, of whom respondent was one. The executor qualified in 1864, collected the legacy and filed an inventory in August, 1871. Respondent, in November, 1871, presented a petition to the surrogate setting forth the facts, concluding with this prayer: “ To the end that the said Warren S. Peck, executor as aforesaid, may be required to pay to your petitioner the amount of your petitioner’s said claim under the said last will and testament of the said testator, your petitioner prays that an order may be granted requiring the said Warren S. Peck, at a certain day to be therein specified, personally to appear in this court and render an account of his proceedings as such executor aforesaid; and that such further .or other proceedings, according to law, may be therein had as may be requisite to enforce the payment of your petitioner’s claim aforesaid, and as to the surrogate shall seem just and equitable.” Hpon this petition the surrogate made an order directing that a citation issue requiring the executor to appear and “ render a settlement of his accounts.” A citation was, thereupon, issued requiring the executor “ to render an account of his proceedings, or show cause,” etc. The executor rendered an account, to which objections were filed by petitioner, and, subsequently, a supplemental account, to which a general objection “ to any and all of the items ” was filed. The surrogate, under objection, took testimony, settled the account and the amount to be paid respondent, and decreed payment thereof. He left in the hands of the executor $750 to pay certain contested claims. The appellant made these points: 1st. That the surrogate did not have jurisdiction, save to require the rendering of an account. Held, as above stated. 2d. That the executor having made his supplemental account, under oath, and exhibited vouchers, the surrogate could not inquire into or dispute any of the items, without the making and filing of specific objection. Held, as above. 3d. A note held by one James Coyle was stated' in the account as a claim against the estate. It was not provided for by the decree; it had not been paid. Held,, that as there appeared to be sufficient of the $750 left with the executor, not required to pay the disputed claims, and as the amount of the note was to be provided for, not allowed to the executor, that he was well protected in case the note should be proved and enforced against the estate. 4th. The accounts contained as one item a municipal assessment for flagging the sidewalk in front of the homestead. The surrogate apportioned this item, deciding that the tenant for life should pay a proportion thereof. Held, no error. 5th. The accounts also contained items for insurance of the buildings and for putting lightning-rods thereon. It appeared that these items were incurred by the life tenant. The surrogate refused to allow any portion of these items. ' Held, error, as above, and that an apportionment from the $750 should be allowed. Ralph E. Prime for the appellant. Daniel Haight for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for modifying decree of surrogate so aa to direct that the sum of $750 left in the hands of the surrogate be held by him to pay any amount which he is bound to pay on the James Coyle note and interest, and a.proper portion of the sum paid for premiums for insurance and cost of lightning-rods and interest, as well as the share of the assessment for flagging and interest; and, in all other things, that decree of surrogate be affirmed. All concur. Judgment accordingly.