New York County NyArchives Court.....Prout, Moses Vs. Moses Prout 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 WILLIAM F. PROUT, Deceased.

MOSES P. PROUT, Son of ROBERT T. PROUT, Respondent, v. MOSES P. PROUT, Son of 
JACOB PROUT; GEORGE PIRNIE and JAMES McNAB, as Administrators, etc., of WILLIAM 
F. PROUT, Deceased.

Residuary legatee—is "a party in interest" authorized to call to account the 
administrators of an estate of which his testator inherited a share.

A residuary legatee under the will of a nephew of a decedent whose estate passed 
by the law of inheritance to his nephews and nieces, is a person interested in 
the estate of said decedent, and may institute proceedings to compel the 
administrators of such decedent to render an account of their proceedings as 
such administrators.

Fisher v. Banta (66 N. Y., 468) followed.

Appeal by Moses P. Prout, son of Jacob Prout, James McNab and George Pirnie, the 
administrators of William F. Prout, deceased, from an order made at the Special 
Term of the Supreme Court, and entered in the office of the clerk of the county 
of New York on the 29th day of January, 1889, directing the said administrators 
to render and settle an account as such administrators.

G. H. Crawford, for the appellants.

E. D. Hawkins, for the respondent.

Van Brunt, P. J.:

This is an appeal from an order made by the surrogate upon the petition of Moses 
P. Prout, directing that the administrators of William F. Prout, deceased, 
render and settle an account of their proceedings as such administrators.

The objection taken is that the petitioner is not a person interested in the 
estate so as authorize him to present his petition for the purposes above 
stated. The deceased, William F. Prout, died intestate, leaving personal 
property, and as his next of kin, six nieces and four nephews, of whom Robert T. 
Prout, the father of the petitioner, was one. Subsequent to the death of Wm. F. 
Prout, Robert T. Prout, his nephew, died, leaving a will whereby the brother of 
the petitioner, William, was appointed sole executor, and under which the 
petitioner was a residuary legatee. This will was admitted to probate by the 
surrogate of Kings county, and letters testamentary issued thereon to the 
executor therein named. It is claimed that such executor represents the sole 
claimant or party in interest in the estate of William F. Prout, deceased, as 
the personal representative of his nephew Robert T. Prout, deceased, the father 
of the petitioner. The provisions of the Code are that a petition of this 
character may be presented by "a creditor or a person interested in the estate 
or fund;" and the interpretation of the term is somewhat obscured by the 
definition given to it by subdivision 11 of section 2514, where such person is 
defined as one who is entitled, either absolutely or contingently, to share in 
the estate or the proceeds thereof, or in the fund as husband, wife, legatee, 
next of kin, heir, devisee, assignee, grantee or otherwise, except as a 
creditor. Although the petitioner is not strictly legally entitled to receive 
directly from the administration any portion of the estate which they are called 
upon to administer, yet that he is a person interested in the estate, within the 
provisions of the section, seems to be distinctly held in the case of Fisher v. 
Banta (66 N. Y., 468), where the court holds that a legatee bearing the same 
relation to the original estate as the petitioner does to the estate of his 
great uncle, had an interest in a similar proceeding before the surrogate.

It is true that there may have been other reasons for the court holding as they 
did in that case, that the accounting should not be considered as final as the 
interest of the representatives of the two estates were in nowise hostile, and 
the interest of the legatees in the last estate were not represented by any 
independent party, the proceeding being instituted by a person as representative 
of one estate against himself as representative of another. Were it not for this 
expression of opinion upon the part of the Court of Appeals we should be 
inclined to hold that the legatee, under the will of the nephew, had no 
interest, either absolute or contingent, in any portion of the estate of the 
great uncle, deceased, but that all the claimants of the petitioner's father's 
estate against the estate of the intestate were represented by the executor. In 
view, however, of the expression by the Court of Appeals upon this question, we 
think that the order should be affirmed, with ten dollars costs and 
disbursements.

Bartlett, 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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