In re the several Accountings of the Executors of Tilden

— The appeals taken in the proceedings were decided by this court in the early part of the year 1884, and after the forms of the orders had been settled, but before the direction was given for their entry, an application was made on behalf of the executors for the reargument of the principal appeals, and also for an order permitting the surrogate to correct and supply alleged deficiencies in his return. The ease presented in support of the appeals was thereupon re-examined, and the conclusion was adopted that a reargument could be of no benefit to the executors, and their application so far was denied. It was not decided then, neither had it been when the decision was first announced, that upon a re-examination of the accounts of the executors, they could be held responsible for anything beyond what they had been charged with by the decree of the surrogate. But it was concluded that a proper case had been made to appear, permitting the appellant, who was one of the next of kin of the testator, and a devisee and legatee under his will, to secure a re-examination of the accounts of the executors, after he had attained the age of twentykme years, which he did shortly before his application was made to the surrogate for liberty to make that re-examination. It was claimed in support of the application, that during his minority his interests in the estate had not been protected as they should have been upon the several accountings which had taken place. And by an examination of the case containing the accounts, the result was considered to be sustained that he was entitled to a further hearing before the surrogate, in which he should be at liberty to contest the large charges made against him in the accounts of the executors. Whether they improperly charged him for any sums of money contained in their accounts, or he could succeed in showing their charges to be excessive, or in any manner unfounded, was not a matter determined by the decision of the court. But all that was held was that sufficient had been made to appear, in view of the circumstances disclosed by the case, to entitle him to a full and complete investigation of the charges made by him against the executors. The direction was intended to be given as much in their interest as it was in his, to enable them, if his charges should ■ prove to be unfounded, to be properly vindicated against them.

It may be, as it was attempted to be shown in support of the application for the re-argument, that the items relied upon as justifying the decision announced were not as large as they were deemed to be on the examination of the accounts which took place. But even if they were not, they were sufficiently formidable to justify the decision of the court in directing that a further investigation, as to their legal and equitable property, should be made at the instance of the person whose share in the estate of his father was affected by them, and accordingly the motion for a reargument of the two appeals affecting the executors was denied.

After this denial an order was made on behalf of the executors directing the return of the surrogate to be transmitted to him for further consideration and amendment, in case it should be found to be deficient, and in the order giving that direction, a further hearing was provided for in ease that should be rendered necessary by changes in or additions to the surrogate’s return. The chief complaint then made was, that the paper contained in the return and designated as exhibit A, and the testimony of a witness taken in the proceeding before the surrogate should form no part of the papers upon which the appeals should have been heard and disposed of. This was for the first time raised after the appeals had been heard and decided. No previous intimation that the case, as it was presented, was in any respect defective. But it was assumed upon the argument by both parties to be in a proper condition for the consideration and decision of the appeals. But as there was alleged to be a misapprehension concerning its contents, and that it was first discovered after the decision had been announced, an order transmitting the return to the surrogate was made. The examination which was thereupon made by the surrogate resulted in a certificate that the printed case was correct in both the particulars to which objection had in this manner been made, and upon that certificate being brought before the court the orders, which had previously been settled, were directed to be entered. But intermediate to the time when the certificate of the surrogate was returned, and the orders were in fact entered, an order.was made by the surrogate, at the instance of the executors, requiring their application for the correction of the return to be further considered. This was not brought by either party at the time to the attention of tins court, and for that reason the orders declaratory of the decision on the appeals were entered during the pendency of this order of the surrogate. He, however, proceeded to make a further examination of the objections presented by the executors to the return, and returned to this court as papers before him upon the hearing of the application of the appellant for a re-examination of the accounts of the executors, all the papers in the proceedings, together with the statements of the accounts, whether remotely or directly bearing upon the application before him to vacate and set aside the preceding decrees. And upon these papers being now returned, a further application for a reargument of the appeals has been made to the court.

But the additions returned by the surrogate do not appear to require any further hearing before this court than can be given to the case in the disposition of this application. The large mass of the papers returned, while they were in fact used before the surrogate, were entirely inapplicable to the subject then brought to his attention, and as such they can receive no consideration of the disposition of the present motion. These are the formal proceedings taken by the executors on the different accountings to bring the parties in interest before the surrogate. They can have no practical effect in the determination of the motion. For even if it should be assumed, as it probably should not, that subdivision 6 of section 2481 of the Code of Civil Procedure did not apply to the proceeding, for the reason that those taken before the surrogate for the accountings were instituted before that portion of the Code went into effect, it would not change the disposition that should be made of the application for a reargument. For without that provision, and under the preceding law, this court was authorized to review the orders made by the surrogate, and if it was not considered to be supported to reverse it, and direct a further hearing of the matters in controversy before him, and that is all that was designed to be accomplished by the decision which was made. It was to place the appellant at liberty to have the executors’ accounts, which had been settled during his minority, re-examined after he attained his majority, and to have a final determination made as to their accuracy, and the justness of the charges against him that the decision announced was made, and whether the court should proceed under the former law, or that included in the Code, it had the power and authority to give the directions which it did. But as the applications were made to the surrogate after the 1st of September, 1880, this provision of the Code did apply to these appeals.

A further and larger portion of the papers returned included statements of the estate of the testator, of property sold by the executors, of debts paid by them, of interest and rent collected by them, of expenditures made on account of the estate, debts collected of debtors, and legacies paid to the widow, and the other children of the testator. These statements formed a large part of the bulk of the accounts returned by the surrogate as being before him on the hearing of the application made by the appellant. As to them no question was made. It was not asserted that the executors had received more than they stated they had, or that they had paid out less than was set forth in their accounts, and consequently these accounts have no relevancy whatever to the points in controversy, and excluding them as well as the formal papers previously mentioned from consideration, but a very small part of the accounts returned by the surrogate have any pertinency to the disposition of the motion now made on behalf of the executors, and they are the accounts of moneys disbursed for or on account of Beverly B. Tilden, the appellant, and they are all included in about thirteen pages of the four hundred and two now returned, as containing matters which were before the surrogate upon the hearing of the application for relief from the preceding decrees, made in behalf of the appellant, and a correct summary of such expenditures and disbursements appears to have been contained in what has been called exhibit A in the original case, to which the executors have so strenuously objected. These accounts of moneys paid out or disbursed for or on behalf of Beverly B. Tilden amount to the same sum as was previously stated in exhibit A. The executors’ contention has been, that in that exhibit the different items were collected and added together in making up the statement, while in the accounts now produced the items themselves are set forth with a greater degree of particularity. As to one, however, the same summary was made, that is, the item of $4,803.24 for his share of the household expenses, and that has been stated substantially the same in the accounts as they have been at present returned, as it previously had been in exhibit A. What the appellant mainly complained of was, that he had been charged with more moneys than in the discreet and careful discharge of the duties of the executors he should have been charged with during his minority. It was not alleged that these moneys had not been paid over by the executors, but that the amounts paid over were so excessively large as to render the payments for his maintenance and education entirely unjustifiable and improper, and for that reason liberty to examine and contest their accounts was asked by him in the. application made in his behalf to the surrogate. And as these payments aggregated together form no larger sums than now appear to be in detail in the accounts of the executors, their addition cannot be an important fact to be considered in the case. For the fact still remains that the charges made by them for moneys disbursed among the minority of the appellant are still in like manner as they were when more fully aggregated and stated in exhibit A. The expenditures charged remain precisely the same. So much of the interest of the appellant in the estate of his father is alleged to have been appropriated to his use. The entire amount has not been changed, but only the manner of stating it, and it is to the expenditures themselves that the objections taken in behalf of the appellant before the surrogate were in fact presented. The merits of the objections remain unchanged, and practically stand upon the same ground that they did when the case was first heard and considered by this court, and a further hearing and examination of them than that which has been given upon the points presented in support of this application, would be of no practical service to the executors. The controlling facts remain still the same, apparently entitling the appellant to a re-examination and reconsideration before the surrogate, of the charges complained of by him, as improperly made against him in the executor’s accounts during the period of his minority. While the application was pending before the surrogate for his further return, the executors appealed from the order of this court to the court of appeals, where the case is now shown to be in readiness for argument. That should not be delayed or prevented by an order made by this court, when from the facts appealing in support of the application it is quite evident that no change can be made in the directions already given for the disposition of these appeals. But what .he court should do, is to confirm its own orders already entered, notwithstanding the fact that the accounts themselves have been further itemized, and though no substantial change has been made in the case, the executors should be at liberty to add the additional return of the surrogate to their appeal taken to the court of appeals, for its consideration by that tribunal. That direction should accordingly be given, and the motion for a reargument of the appeals denied.

On appeal to this court from the orders of the supreme court at general term;

Joseph H. Choate and C. E. Tracy, for the executors, appellants, made and argued the following points: (1.) Heither the surrogate nor the supreme court had power upon a proceeding of this nature on a mere motion, to he heard on affidavits, to set aside the decrees in question, because the time allowed for that purpose by the statute had expired before the application was made. In making its -orders the supreme court relied upon Code of Civil Procedure, section 2481, subdivision 6, whereby it is provided that the surrogate snail have power “to open, vacate, modify or set aside * * * a decree ” or order of his court, or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the General Term of the supreme court has the same power as the surrogate, and his determination must be reviewed as if an original application was made to that term. Courts of record and of general jurisdiction, however, have only such powers in this regard as are conferred .on them by Code sections 1282, 1291. A motion to set aside a judgment for “irregularity” must be made within one year {sec. 1282) and “ for error in fact not arising upon the trial,” within two years {sec. 1290), and where the applicant is under disability for infancy, the time cannot be extended “more than one year after the disability ceases” {Sec. 1291). As already stated, the last in order of the decrees in question was entered April 30, 1880. Beverly came of age December 10, 1880. As a minor just come of age, he had, until December 10,1881, in which to move against the first three decrees, and until April 30,1882, in which to move against the fourth decree. His motion was not made until April 2,1883. It was a year too late to move, whatever may be or may have been his right to bring an action founded on allegations of fraud. There was therefore an absolute want of jurisdiction in either court to entertain the motion, much less grant it. The want of jurisdiction may be set up at any time, either on appeal or otherwise, provided it arises out of matters which are not amendable. Precisely such a ease as the one at bar was dismissed upon this ground by the same General Term (In the Matter of Becker, 28 Hun, 207). The point was distinctly taken in the supreme court, and it should have dismissed the case “ as if an original application was made to that term.” The ruling in Matter of Becker (28 Hun, 207), that although the statute in terms required the appointment of a guardian ad litem, still the decree was not for that reason void, but only voidable upon proper proof of fraud or collusion, is in accordance with established rules of law (McMurray agt. McMurray, 9 Abb. [N. S], 315; McMurray agt. McMurray, 66 N. Y.,175; De Witt agt. Post, 11 Johns., 460; Harris agt. Youman, 1 Hoffm. Ch., 178; Mills agt. Denio, 3 Johns., Ch., 367; Freeman on Judgments, sec. 151; Daniel's Ch. P. [5th ed.], p. 164; Brick's Estate, 15 Abb. Pr., 12). Fraud, collusion or other like error, must therefore be proved and found before decrees regularly entered can be set aside. The supreme court, therefore, had no jurisdiction in the absence of proof of fraud, or a finding of fraud by a competent trial court, to set aside the decree in question. The exact case presented by the record is this: There are four successive decrees of the surrogate, which, before the attempt by motion to vacate them, had stood unquestioned for eleven, nine, six and three years respectively. The infant, a party duly served in all, had come of age three years before he made his motion. In respect to the oldest decree alone, a defect amounting not to an irregularity, but at most (if anything) to what is strictly known as “ error in fact dehors the record ” is alleged. In respect to the other three, no irregularity and no error in fact is even alleged. The judgment or order appealed from vacates them all, the first for the alleged error in fact, the other three for negligence in the guardians ad litem,, or in the surrogate, the charges of fraud in respect to all not being passed on, or made the grounds of the action of the court. It is confidently submitted that the supreme court at general term had no jurisdiction or power on motion to vacate either of the decrees, either on the grounds stated in their opinion as the grounds of their action, or on any ground. If the petitioner had any case for vacating either decree, he could proceed only by a regular bill in equity, in which the executors could have- an opportunity to defend themselves, which in this proceeding was impossible.

8. P. Wash and W. 8. Macfarlane, for Beverly B. Tilden, respondent.

Huger, Oh. J.

— The jurisdiction of this court to entertain this appeal is questioned upon two grounds, viz.: 1st. That the order appealed from is not final; and 2d. That its allowance rested in the discretion of the court below and is not re viewable here.

We think the first ground is not tenable. The proceeding terminating in the orders appealed from contemplated one result only, viz., the annulment and vacation of the several decrees of the surrogate challenged by the petitioner. Ho other relief was sought, and although its allowance might involve other proceedings they were ulterior and altogether disconnected from that pending. Such subsequent proceedings, if instituted, would in no sense be founded upon the relief granted in this proceeding; but the granting of such relief would simply remove defenses which might otherwise be made to such subsequent proceedings. The order setting aside the decree was the necessary termination of the proceeding, and rendered it a final order within the meaning and intent of the statute. The validity of the second objection depends upon the power of the court below to vacate the decrees. Assuming the existence of such power the order was wholly a discretionary one and, therefore, not reviewable here.

We are of the opinion, however, that the power did not exist. The decrees sought to be vacated were made by the surrogate upon several accountings had on May 25,1872, July 30,1874, June 7, 1877, April 30, 1880, respectively. The petitioner alleges the actual service of a citation in each and all of the accountings, and that such service was duly made upon him for each of the hearings, resulting in the three last decrees. Each decree recites due service of a citation, not only upon the petitioner, but also upon his general guardian for each of the accountings. The three last decrees each recite the appointment of a special guardian duly made to protect the interests of the petitioner, and the last decree shows that such guardian was appointed upon the personal request of the petitioner. These circumstances, together with a sworn petition alleging the jurisdictional facts upon which the accountings were based, afforded such evidence of the proper service of citations as could be impeached by proof of fraud or collusion only (Secs. 2473, 2474). The petitioner 'was of the age of twelve, fourteen, seventeen and twenty years, respectively, when the respective decrees were made, and arrived at the age of twenty-one on the 10th day of December, 1880. The petition for the order vacating such decrees was filed before the surrogate on March 31,1883, more than two and a-q.uarter years after he had arrived at majority and about three years after the last decree was made. He alleges that in the various accountings had before the surrogate numerous items for disbursements and expenses during his minority were erroneously charged to his account by the executors, and various items were erroneously credited on the accounts and allowed by the surrogate in the several decrees to one of the executors. The affidavits and proof in the case render it probable that these allegations in some respects might be sustained by evidence upon a new accounting; but the question arises whether the petitioner’s right to such an accounting is not barred by the statute. The court below set aside and vacated all of the surrogate’s decrees so far as they affected the petitioner upon the ground of his minority and for alleged irregularities in the service of the citations for the first and third accountings alone, and upon the further ground that it presumptively appeared from the moving papers that the petitioner had suffered injustice by the decrees in question. ¡No question was made as to the regularity of the proceedings on the second and fourth accountings. No allegation or evidence of fraud or collusion in any of such accountings was suggested upon the hearing below or in this court, nor was there any complaint that all of the moneys charged by the executors were not actually paid by them as alleged in the several accounts.

It appeared that upon the various accountings before the sm-rogate, each succeeding account after the first was based upon the one preceding, and that the balance of assets found and adjudged to be in the hands of the executors by the prior decree, was made the foundation of the next account, and the validity of eacli previous account and decree being unchallenged by any objection, was assumed and adjudged to be correct in each succeeding accounting and judgment. The balance appearing by the third decree was,, upon the fourth accounting, stated in the account as the just and true amount of the assets in the hands of the executors at the date of that decree, and any of the heirs or legatees might have controverted that allegation if any reason existed why the decree fixing that amount was not binding upon him. It follows that each successive decree instituted upon citations duly issued and served upon the parties interested in the estate, whether adults or minors, and based upon proceedings regularly conducted, was binding and conclusive upon each of such persons as to the validity of any prior decree which entered into and was made the basis of the subsequent accounting.

There can be no doubt that these various decrees were binding upon all the adult heirs and legatees who were duly cited to appear, and that they have been set aside as to the petitioner solely on account of his minority and his presumed incapacity on account thereof, to properly guard his interests on the accountings. The question then arises whether his minority constitutes a sufficient reason why decrees taken against him under proceedings regularly conducted in all respects, should be vacated and annulled.

The statute provides a method by which errors occurring on trial and proceedings before a surrogate shall be corrected and reviewed, but this is not claimed to be such a proceeding and is not therefore within those provisions (Chap. 18, tit. 2, art. 4, secs. 2568 to 2589). Bection 2481 provides that a surrogate has power “ to open, vacate, modify or set aside, or to enter as of a former time a decree or order of his court, or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical errors or other sufficient cause. The power conferred by this subdivision must be exercised only in a like case, and in the same manner as a court of record and of general jurisdiction exercises the same powers.” It is further provided that the general term of the supreme court has upon appeal from an order made under this provision the same power as the surrogate had to grant or deny the same. We are thus referred by this section to the power possessed by courts of record over judgments rendered by them in order to ascertain the authority conferred upon surrogates by this section. For errors committed upon the trial of actions in those courts detailed proceedings are also provided by statute, and a right of review depends upon a strict compliance with such provisions. Other cases in which relief may be obtained upon motion for irregularities and errors of fact not arising upon the trial are provided by the Code, and those provisions are intended to embrace all of the grounds for relief not included in regular proceedings for review upon appeal, and those which are not attainable by an action to vacate and set aside judgments and decrees. Thus it is provided that motions may be entertained in courts of record to set aside judgments .for irregularity, but the time within which this may be done is limited to one year after the filing of the judgment-roll {Seo. 1282).

It. is also provided that a like motion may be made to set aside a final judgment for error in fact not arising upon the trial, but this relief must be sought within two years from the filing of the judgment-rolls (Seos. 1283 and 1290). In 'case the person against whom the judgment is rendered is within the age of twenty-one years at the time of its filing, the time of such disability is not a part of the time limited by section 1290 for the commencement of the proceedings for relief, except that such disability can in no case extend beyond five years or authorize the relief provided by those sections if applied for more than one year after such disability ceases.

Relief from judgments regularly taken against minors for errors of fact not arising upon .the trial must be applied for within one year after the minor reaches his majority, and the necessary implication from this requirement is that after that time no relief can be had by motion in the cases mentioned in the statute.

It was well settled under the former practice of the court that the minority of a party to an action when urged as the ground of a proceeding to set aside a judgment or decree rendered against him, constituted an error of fact which might be alleged and proved dehors the record.

The fact of infancy could formerly be taken advantage of by writ of error, or according to the English practice by an original bill impeaching the decree rendered against the minor for fraud or collusion, or that no day had been given to him to show cause against it (McMurray agt. McMurray, 66 N. Y., 175; Arnold agt. Sandford, 14 Johns., 417; Peck agt. Coler, 20 Hun, 534).

In the case of Woods agt. Pangburn (75 N. Y. 495), it was held that the general term of the supreme court had no power to set aside a regular judgment which had not been paid. This court held in Dinsmore agt. Adams (66 N. Y., 618), that a motion to vacate a judgment taken by default on the ground of mistake, inadvertence, surprise or excusable neglect, made after a delay of one year from the time of its entry, was barred by the provisions of section 174, of the Code of Procedure, although such provisions did not apply to a similar - motion based upon fraud. The causes for which judgment migiit be vacated under section 174, are analogous to those contained in sections 1282, 1283, and 2481 and seem to us to be governed by the limitations imposed therein, except in cases when fraud and collusion is made the ground of application for relief.

A judgment sought to be set aside on the ground of fraud or collusion, or as being void for any reason, or when the court has not acquired jurisdiction of the person against whom it is rendered, is, of course, not governed by these limitations (Foote v. Lathrop, 41 N. Y., 359), but when the ground of relief is the infancy of. the party applying, we think the application is analogous to those arising under section 174, and is governed by the provisions of section 1283 and 1290, and should, therefore, be made within one year after the minor arrives at the age of twenty-one years.

It follows from these views that the order of the general term should be reversed, and that of the surrogate affirmed, with costs.

All concur.