Opinion
May Term, 1900.
Vasco P. Abbott, for the appellant.
Kendall B. Castle, for the respondents.
At the threshold of the argument the appellant challenges the right of the surrogate to thus amend his decree. By subdivision 6 of section 2481 of the Code of Civil Procedure, in specifying the incidental powers of the surrogate, it is provided: "6. 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 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."
In Matter of Henderson ( 157 N.Y. 423), at page 426, Judge O'BRIEN, in writing for the court, says: "The general powers of the Surrogate's Court are wholly statutory, but it certainly must possess * * * some inherent power, and the correction of their own records, when affected by some mistake or clerical error, would seem to be about as mild an exercise of such power as can well be imagined. This power is recognized and perhaps regulated by various statutes, but it does not proceed from or rest upon statutes, since it would exist without them. ( Hatch v. Central National Bank, 78 N.Y. 487; Vanderbilt v. Schreyer, 81 N.Y. 646; Ladd v. Stevenson, 112 N.Y. 325.)"
In Campbell v. Thatcher (54 Barb. 382) it was held that, although a surrogate, after the parties in interest had been represented at a hearing before him, and final sentence or decree has been given, has not general power to open or reverse his sentence or decree, on the ground that he erred as to the law, or decided erroneously upon the facts, he may open such decree for the purpose of correcting any mistake therein, the result of accident. In that case, by inadvertence the surrogate's decree failed to credit the executor with an item of $500, and an order by the surrogate opening the decree and making the credit was held to be authorized. If the proceedings were in the Supreme Court, power to correct the judgment to conform to the decision made would not be disputed.
While the practice in Surrogates' Courts differs somewhat, and the decree, rather than the decision, is the official utterance of the surrogate, nevertheless the decision filed becomes a part of the record to show any omission from the decree by reason of mistake or inadvertence.
Upon the right of these legatees to immediate payment from this executor there has been no adjudication. These legatees would have had no appeal from the decree as first entered, because their petition was not denied. Power must exist in the surrogate so to modify the decree as to express the decision made and authenticated under his hand upon the record. Otherwise these legatees, without a right of appeal or without a right of correction, would be remediless.
But this appeal is also from the decree as amended. The contention of the appellant is that, notwithstanding he has overpaid some of the legatees, inasmuch as the surrogate has found that this was done in good faith, he cannot be charged by the legatees whose lawful proportion has not been paid, until he has collected back the amount overpaid from the other legatees. This contention is without support either in authority or reason. The executor had a right to refuse to pay any legatee more than his lawful proportion of the assets realized. Such was his duty. Any payment in excess thereof he made at his peril. He is properly charged with the money which he ought to have applicable to the payment of these legacies, and his own stupidity or good faith will not relieve him.
The case of Harvard College v. Quinn (3 Redf. 514) is cited as holding a contrary doctrine. This was a case where certain legacies were required to be paid before other legacies. At the time of the payment of the prior legacies there were sufficient funds to pay in full. In the case at bar there is no question of a prior legacy. The legacies were all to be paid at the same time, and it was the duty of the executor to pay ratably.
And this proposition is not without authority. In Matter of Underhill ( 117 N.Y. 471), Judge PECKHAM, in writing for the court, says: "The claim that the executor makes of an alleged overpayment by him to a legatee, is a matter, so far as a recovery thereof by the executor is concerned, between him and such legatee. * * * An overpayment made by the executor to any person entitled to a distributive share does not in any way diminish the amount of the estate which the law says is in the executor's hands for distribution. The law does not recognize any such overpayment, and does not, therefore, permit the executor to credit himself with the amount of the excess. In legal contemplation, the sum is in the hands of the executor as assets of the estate which he must pay over to the parties entitled thereto." (See, also, Matter of Lang, 144 N.Y. 275; Matter of Hodgman, 140 id. 430.)
We find no reason, therefore, for disturbing the order amending the surrogate's decree or the decree as amended.
Order amending decree and decree as amended affirmed, with costs.
All concurred.
Decree and order affirmed, with costs.