Montgomery County NyArchives Court.....Wagner, Webster, Matter Of 1889
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Source: Reports Of Cases - N Y
Written: 1889

In the Matter of the Judicial Settlement of the Accounts of JAMES D. TAYLOR, as 
Sole Surviving, Executor of the Last Will and Testament of WEBSTER WAGNER, 
Deceased.

In the Matter of the Estate of WEBSTER WAGNER, Deceased.

Settlement of an estate, by the parties in interest, by their execution of a 
written sealed release — an administrator of a deceased legatee cannot compel 
the executors to file an inventory and account — a surrogate cannot pass upon 
the validity of the release — section 2715 of the Code of Civil Procedure 
construed.

Webster Wagner died in January, 1882, leaving him surviving his widow Susan 
Wagner and five children. By his will, after giving his family residence, with 
the personal property therein, to his widow for life, with the remainder to 
Norman L. Wagner, one of his sons, and to each of his children certain specific 
real estate, with the condition in each instance that if a devisee should die, 
without lawful issue surviving, the property should go to the other children, he 
gave the residue of his real and personal estate equally to his widow and five 
children. In January, 1882, letters testamentary werre issued to his widow and 
to Norman L., his son, and his son-in-law James D. Taylor.

On March 7, 1885, the widow and all of the five children executed, under their 
hands and seals, an instrument of that date setting forth the fact of the 
execution of the will and the residuary clause in full and the probate, by which 
each acknowledged the receipt from the said executrix and executors of "the sum 
or legacy of seventy-five thousand dollars, to each of us in hand paid, being 
the one-sixth part of all real estate, all notes, bonds and mortgages, * * * and 
all other personal effects not otherwise specifically devised under said last 
will and testament aforesaid, so given and bequeathed to us as aforesaid, and do 
acquit, release and discharge the said Susan Wagner, Norman L. Wagner and James 
D. Taylor of and from all legacies, dues and demands whatsoever under or by 
virtue of the said last will and testament, or against or out of the estate of 
the said Webster Wagner."

Norman L. Wagner having died, November 4, 1886, intestate, leaving children 
surviving him, letters of administration on his estate were issued on November 
29, 1886, to Josephine L. Wagner, who, on October 26, 1887, upon a petition 
setting forth part of the will of Webster Wagner, the appointment of the 
executrix and executors, and that James D. Taylor was his sole surviving 
executor, that no inventory had been filed, and also her own appointment, 
applied to the surrogate to compel said surviving executor to file it. The 
executor answered setting up that the personal property had been fully accounted 
for and, also, the agreement above set forth.

Upon an appeal from an order of the surrogate directing an inventory to be 
filed, and from an order made by him on a similar application ordering the 
executor to account:

Held, that, as to the personal prpperty specifically bequeathed to the widow, 
Susan Wagner, with remainder to Norman L., the executrix and executors had 
nothing to do but to deliver it to the life tenant, and that the paper, signed 
by the widow and Norman L., proved, until contradicted, that that specific 
legacy was properly delivered.

That when the executors of a will had fully accounted and settled with all the 
legatees, and have paid their respective shares and had been discharged by such 
legatees out of court, the administratrix of one of those legatees could not, 
without proof of fraud, compel the filing of an inventory.

That the provisions for filing an inventory and for having accountings were for 
the benefit of the persons interested, and that if such persons preferred to 
settle their affairs privately, such settlement should have the same conclusive 
effect as a similar settlement in any other matter.

Thomson v. Thomson (1 Bradf., 24); Burwell v. Shaw (2 id., 322); Creamer v. 
Waller (2 Dem., 351); Bonfanti v. Deguerre (3 Bradf., 429); Matter of Dunkel (10 
N. Y. St. Rep., 213) distinguished.

That the surrogate could not pass upon the validity of the release; that a court 
of equity must decide that question.

Bevan v. Cooper (72 N. Y., 317); Stilwell v. Carpenter (59 id., 414); Tucker v. 
Tucker (4 Keyes, 136); Pettigrew v. Foshay (12 Hun, 486) followed; Matter of 
Read (41 id., 95; Harris v. Ely (25 N. Y., 138) not followed; Kenny v. Jackson 1 
Hagg. Ecc., 105) distinguished.

It was urged by the respondent that the filing of the inventory and the 
accounting should be directed in order to funish facilities for the plaintiff to 
prove that the settlement of March, 1885, was fraudulent.

Held, that this claim could not be sustained, as the plaintiff could, in an 
action to set aside the settlement, examine the defendant and compel the 
exhibition of the inventory and all accounts which might be needed, and in such 
action the whole matter could be investigated and satisfactorily disposed of.

It was further claimed by the respondent that by reason of the provisions 
contained in section 2715 of the Code of Civil Procedure when an application is, 
made by a creditor or a person interested in the estate, and the petitioner 
alleges an interest and the petition is duly verified, the surrogate must, if 
satisfied that the executor or administrator is in default, make an order 
requiring the delinquent to return an inventory.

Held, that this construction should not be given to such section, as if it were, 
any person who verified a petition, alleging that he was interested in the 
estate, however false the allegation might be, could compel an inventory to be 
filed and an accounting to be made in reference to an esteste, in which he had 
no shadow of interest.

Appeal by James D. Taylor, as sole surviving executor of the last will and 
testament of Webster Wagner, deceased, from a decree entered by direction of the 
surrogate of Montgomery county on March 5, 1888, directing him to file an 
inventory, and from a decree of like date requiring him to file an account.

The deceased died in January, 1882, leaving him surviving his widow, Susan 
Wagner, and his five children, Norman L. Wagner, Emma C. Taylor, Anna P. Van 
Vlack, Clara E. Stetson and Annetta Q. Wagner. By his will he gave his family 
residence, with the personal property attached thereto, to his widow for life, 
with remainder to Norman L. Wagner. He gave to each of his children certain 
specific real estate, with the condition in each instance that if the devisee 
should die without lawful issue surviving, the property should go to the other 
children. He then gave the residue of his real and personal estate equally to 
his widow and his five children, and made his widow, his son, Norman L., and his 
son-in-law, James D. Taylor, executrix and executors. Letters testamentary were 
duly issued to them in January, 1882.

On the 7th day of March, 1885, the widow and all the five children executed, 
under hand and seal, an instrument of that date, setting forth the fact of the 
execution of the will, and setting forth fully the aforesaid residuary clause 
and the probate, and then proceeded as follows:

"Now, therefore, we, the said Susan Wagner, Norman L. Wagner, Emma C. Taylor, 
Anna F. Van Vlack, Clara E. Stetson and Annetta C. Wagner, severally, hereby 
acknowledge the receipt from the said Susan Wagner, executrix, and Norman L. 
Wagner and, James D. Taylor, executors, as aforesaid, the sum or legacy of 
seventy-five thousand dollars to each of us in hand paid, being the one-sixth 
(1/6) part of all real estate, all notes, bonds and mortgages, railroad stocks, 
sleeping car and drawing-room car stocks, and all other personal effects, not 
otherwise specifically devised under said last will and testament aforesaid, so 
given and bequeathed to us as aforesaid, and do acquit, release and discharge 
the said Susan Wagner, Norman L. Wagner and James D. Taylor of and from all 
legacies, dues and demands whatsoever, under or by virtue of the said last will 
and testament or against or out of the estate of the said Webster Wagner."

The instrument closed with a release and discharge of the executrix and 
executors of and from all legacies, dues and demand whatsoever under or by 
virtue of said will.

On the 4th of November, 1886, Norman L. Wagner died intestate, leaving children 
surviving. Letters of administration on his estate were issued November 29, 
1886, to Josephine L. Wagner. Josephine L. Wagner, administratrix, on the 26th 
day of October, 1887, upon a petition setting forth part of the will of Webster 
Wagner, the appointment of executrix and executors, and the fact that James D. 
Taylor was sole surviving executor; her own appointment, and also the fact that 
no inventory had been filed, applied to compel said surviving executor to file 
such inventory. The surviving executor answered, setting up that the personal 
estate had been fully accounted for; that the petitioner had no interest 
therein; that a full statement of all matters and things pertaining to the 
personal estate of said decedent was made February 27, 1885, by the executrix 
and executors to the widow and children, and a paper given thereupon by the 
widow and children, under hand and seal; being that above stated.

On the hearing before the surrogate the petitioner proved the will and probate, 
also the will of Susan Wagner and probate, and the petitioner's appointment as 
administratrix of Norman L., and as guardian of his children, and rested. The 
executor proved the instrument above described. There was no other evidence. The 
surrogate ordered an inventory to be filed. A similar application was made by 
the same petitioner to compel the said surviving executor to make an accounting. 
The same evidence was given and the surrogate ordered an accounting. The 
surviving executor appeals from both orders.

Esek Cowen, for the executor, appellant.

Hiram L. Huston, for Josephine L. Wagner, administratrix, petitioner, respondent.

Learned, P. J.:

As to the personal property specifically bequeathed to the widow, Susan Wagner, 
with remainder to Norman L., it is plain that the executrix and executors had 
nothing to do but to deliver it to the life tenant. The remainderman, Norman L., 
was entitled to have from her an inventory. Perhaps, in a proper case, he might 
have security from her. But the duty of the executrix and executors of William 
Wagner was performed when they delivered the property to the widow. The paper 
signed by the widow and Norman L., is proof until contradicted, that that 
specific legacy was properly delivered. If Norman L. or his widow, the 
petitioner, seeks to obtain that property, they must proceed against the 
executors of Susan Wagner's will.

As to the rest of the property, the question, briefly stated, is this: When the 
executors of a will have fully accounted and settled with all the legatees, and 
have paid them their respective shares and have been discharged by such legatees 
out of court, can the administratrix of one of those legatees, without proof of 
any fraud, compel the filing of an inventory? There certainly seems to be no 
reason, upon principle, why the parties in interest should not, without any 
proceeding in court, examine an executor's inventory and account and settle the 
same and give him a full discharge. The provisions for filing an inventory and 
for having accounts are for the benefit of the persons interested, not for the 
satisfaction of the public or of the assessors; and if such persons prefer to 
settle their affairs privately, such settlement should have the same conclusive 
effect as a similar settlement in any other matter. That view is especially 
strong in the present case, because the petitioner is the representative of one 
of the executors, who (it is to be presumed) had, and knew of, the inventory of 
property and the accounts of the executors, and who distributed to himself and 
the other legatees his and their respective shares, according to the instrument 
of March 7, 1885. There is no doubt that, in some court, relief can be had by 
the petitioner against that instrument, if it was obtained by fraud. But the 
question here is, whether, notwithstanding the settlement of which, at present, 
that instrument is evidence, she has a right to compel the filing of an 
inventory.

The petitioner cites several cases which we must examine. {Thomson v. Thomson 1 
Bradf., 24). In this case it turned out on examination that the inventory had 
been filed. Therefore, there could be no decision as to the right to compel its 
filing. Burwell v. Shaw (2 Bradf., 322), was not a case in regard to an 
inventory, but in regard to granting letters. Creamer v. Waller (2 Dem. 351), 
was the case of a creditor whose debt was disputed, but who showed facts in 
support thereof. In Bonfanti v. Deguerre (3 Bradf., 429), the executor, in reply 
to the petitioner, alleged an assignment of the petitioner's claim. It was held 
that this was not a sufficient answer. Matter of Dunkel (10 N. Y. St. Rep., 
213), held only that an executor could have his commission from a co-executor, 
notwithstanding his having signed a receipt for his distributive share. In re 
Brown (3 Civil Pro. R., 39), has nothing to do with the filing of an inventory. 
(In the Matter of Read, 41 Hun, 95.) This was an application by a distributee to 
compel an accounting. It was opposed by the administrator on the ground of a 
general release of all claims and demands and of all liability as administrator. 
The court held that the surrogate could determine the validity of the release, 
and that an accounting should be ordered. The decision that the surrogate could 
try the validity of the release is there stated to rest on Harris v. Ely (25 N. 
Y., 138). In Bevan v. Cooper (72 N. Y., 317), the court say that the remark in 
Harris v. Ely was obiter, and it is disapproved. Indeed, it may be considered as 
decided by that case, and by Stilwell v. Carpenter (59 N. Y., 414) and Tucker v. 
Tucker (4 Keyes, 136), that the surrogate could not pass upon the validity of 
the release. The case of Van Sinderen v. Lawrence (20 N. Y. St. Rep., 72), was 
one in regard to a testamentary trustee, and is said, in the opinion, to be 
analogous to a similar case in regard to an executor. The plaintiff, a 
testamentary trustee, applied to the surrogate for an accounting. The defendant 
claimed to be made a party, and was so made. The plaintiff objected to 
defendant's being heard, on the grounds of a release. The surrogate refused to 
pass on the validity of the release. This action was commenced to restrain the 
proceedings before the surrogate until decision by the Supreme Court on the 
validity of the release. The action was sustained. Similar to this is Pettigrew 
v. Foshay (12 Hun, 486). These cases imply that the proceedings before the 
surrogate should not go forward until a court of equity had decided that the 
release is invalid.

The case of Kenny v. Jackson (1 Hagg. Ecc., 105) is repeatedly cited. That was a 
case in the Prerogative Court of Canterbury. In the opinion it is remarked that 
it was claimed that Kenny, the petitioner, was a minor when he released, and 
that he certainly was a very young man. The court further say that they cannot 
notice such an instrument, but that if the executor is vexatiously cited he may 
have relief in another court. It would seem, then, that in that case the youth 
of the petitioner was considered, and, also, that it was thought that some other 
court could relieve the executor if the proceedings were vexatious. We suppose 
that if this executor has been cited vexatiously the surrogate should have 
relieved him, and certainly no question exists in this case as to the legatees 
being of full and ripe age.

It is worth noting here that the surrogate in his opinion says, that, after an 
accounting shall have been had, should the petitioner proceed to ask a decree 
against the executor in respect to any portion of the funds of the estate, it 
may then be necessary to determine the validity of the release and its effect. 
Now, as the filing of an inventory and the having an accounting are of no use 
unless the petitioner can have a decree for some funds, and as the surrogate 
cannot try the validity of the release, it would seem that this proceeding must 
be of no avail. That is, suppose an inventory be filed and an accounting had, 
and thereupon it should appear that the value of the estate on the 7th of March, 
1885, was more than six times the amount received by Norman L. Wagner, what then 
is to be done? An action must be brought to set aside the release on the ground 
of fraud. If that action should be unsuccessful, then the filing of an inventory 
and the accounting would have been useless.

But it is strongly urged that the inventory and the accounting should be had in 
order to furnish facilities for the plaintiff to prove that the settlement of 
March, 1885, was fraudulent. But all this can substantially be obtained in an 
action to set aside the settlement. The plaintiff can, in such an action, 
examine the defendant and compel the exhibition of all the inventory and 
accounts which may be needed. In such an action the whole matter can be 
investigated and satisfactorily disposed of.

The petitioner further relies on section 2715 of the Code of Civil Procedure, 
subdivision 2. The note informs us that this is intended to settle a question. 
It is quite as likely to unsettle it. If it means that any person who will 
verify a petition, that he is interested, however false the allegation may be, 
can compel inventories and accountings in an estate in which he has no shadow of 
interest, it has introduced a most dangerous principle. Such should not be its 
construction. No person should, without reasonable evidence of interest, 
interfere in the settlement of an estate; and where there has been a voluntary 
settlement and release by all the parties interested, the representative of one 
of those parties should have such settlement and release set aside in a legal 
manner before the matter should be reopened. The court should not discourage 
parties from voluntarily making a full settlement in the case of estates of 
deceased persons any more than in any other matters of trust.

The order of the surrogate should be reversed, with costs. The same, also, as to 
the order of accounting.

Ingalls, J., concurred; Landon, J., dissented.

Orders of surrogate reversed, with costs on each appeal.

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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