New York County NyArchives Court.....Odell, Lawrence, Matter Of 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

In the Matter of the Estate of LAWRENCE ODELL, Deceased.

Code of Civil Procedure, secs. 2803, 2804 — power of a surrogate to order an 
intermediate account.

Where a petition, presented to a surrogate under section 2804 of the Code of 
Civil Procedure, in addition to asking that a decree be made for the payment of 
an amount claimed by a beneficiary under a will of a decedent, contains, also, a 
prayer for general relief such as the court may deem just, it is within the 
power of the surrogate, although the answer prescribed by section 2805 is filed, 
to make, under section 2803 of said Code, an order requiring the testamentary 
trustee to render an intermediate account.

Appeal from an order of the Surrogate's Court of the city of New York, entered 
June 29, 1888, directing testamentary trustees to file an intermediate account.

Jacob Fromme, for the appellant.

Michael H. Cardozo, for the respondent.

Bartlett, J.:

Lydia H. Kane, a beneficiary under the will of Lawrence Odell, deceased, 
presented her petition to the surrogate of the county of New York, alleging that 
she was entitled to one-half of the income derived from the testator's residuary 
estate, and praying that the trustees under the will might be directed to pay 
her $1,500 on account thereof. The petition also asked that the trustees might 
be cited to show cause why a decree should not be made for such payment, and why 
the petitioner should not have such other and further relief in the premises as 
to the court should seem proper.

The testamentary trustees filed duly verified answers in writing, which, under 
section 2805 of the Code of Civil Procedure, required the surrogate to dismiss 
the petition so far as the application for the payment of the $1,500 was 
concerned; inasmuch as the answers sufficed to show that it was doubtful whether 
the petitioner's claim was valid and legal. The surrogate accordingly made an 
order denying the petitioner's application for payment to her of the amount 
which she demanded, but added to the order a direction that the trustees should 
file an intermediate account showing, in detail, their receipts and expenditures 
in the execution of their trust. From this part of the order the trustees appeal 
on the ground that the surrogate had no power, under the circumstances, to 
compel an intermediate account to be filed, but was restricted under the law to 
a simple dismissal of the appellant's petition.

If a petition, under section 2804 of the Code, prayed for nothing except the 
payment of money or the delivery of personal property out of the trust estate, 
it-would seem that the jurisdiction of the surrogate would not extend further 
than to dismiss it upon the filing of such an answer as is mentioned in the 
following section (2805). Rut where the petition, as in the present case, 
contains also a prayer for general relief, such as the court may deem just, we 
think it is within the power of the surrogate, under section 2803, to make an 
order requiring the testamentary trustee to render an intermediate account. That 
this power was properly exercised in the present case seems evident.

Order affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements. 

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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