Opinion
November Term, 1900.
Eugene Clinton and H.C. Stratton, for the appellant.
Samuel S. Stafford, for the respondent.
Section 2568 of the Code of Civil Procedure limits the right of appeal from a decree of a Surrogate's Court to a "party aggrieved," and I think that the appellant is not within that designation. The question raised by him before the surrogate, and on this appeal, is in respect to the validity of the bequest to the First Congregational Church of Oxford, N.Y. In that question the residuary legatees alone are interested, as they are the persons who are entitled to the moneys if the bequest is void. It is not pretended that the estate is not ample for the payment of the bequest, and, on the contrary, it clearly appears to be more than sufficient. The only question is, who are the proper distributees of this $2,000, the church or the residuary legatees; and in this question the executor has not the slightest interest. He is not aggrieved by the direction in the decree to pay the bequest to the Associated Presbyterian Church in Oxford. ( Matter of Hodgman, 69 Hun, 487; affd., 140 N.Y. 421; Bryant v. Thompson, 128 N.Y. 426.) The executor does not represent the residuary legatees on this appeal and no individual right or claim of his is brought before the court. ( Matter of Hodgman, supra; Matter of Mayer, 84 Hun, 539.)
The appellant contends that the surrogate had no power on the order to show cause made by him on the petition of the Associated Presbyterian Society, after the intermediate accounting, to decree payment of the bequest to the church, the executor having filed objections denying its validity. The answer to this is, that the Surrogate's Court did not, on such order to show cause, make the decree for payment. The court, whether correctly or not is not here material, held that the executor could not, at that stage of the case, produce evidence in regard to the issues raised by his objection; and the executor thereafter voluntarily filed his petition for a final accounting and rendered his account, and the decree for the payment of the bequest was thereafter made on the judicial settlement of his account.
The appeal should be dismissed, with costs and disbursements against the appellant.
All concurred.
Appeal dismissed, with costs.