Matter of the Several Accountings, &c., of William Tilden, deceased. ment of proceeds of any bonds and mortgages received by the executors towards equalization of the several accounts in preference to applying them in payment of the mortgages given by any one of the sons. The appraisal was had, also the auction between the sons, and in pursuance of the agreement, land of the appraised value of $520,190.66 was conveyed by the executors to the four sons, and by means of payments and transfers of securities to cover inequalities, each one's account was brought up to the sum of $336,064.S3. The transaction was finally completed in November, 1881. The facts respecting the agreement and their acts under it were fully stated in the executor's fifth accounting, and which said fifth accounting had been instituted after the distribution of realty had been carried out and was pending at the time Beverly applied to the surrogate to open the decrees in question. Beverly came of age December 10, 1880. His proceedings to set aside the decrees were commenced April 2, 1883, some two years and more after he came of age, and a year and a-half after the "advancement accounts" of himself and his brothers under the distribution agreement had been adjusted, and he had received his proportionate share thereunder, and had actually sold and disposed of some portion of the realty which he had thus received. The surrogate held that Beverly was estopped to make the application. The supreme court not only reversed the surrogate's decision, but proceeded to open the decrees and allow Beverly to contest the accounts in respect of items charged to his account, assigning as principal reason therefor that although the money had been actually paid to Mrs. Tilden, yet Beverly on coming of age had the right to contest the items, because they seemed large in the opinion of the supreme court. The following is the opinion of the surrogate, denying the application of Beverly B. Tilden to open the decrees in question: Matter of the Several Accountings, &c., of William Tilden, deceased. ROLLINS, S.-The moving papers herein assert, among other things, that out of the funds of this estate there have been distributed by its executors, to the brothers of this petitioner, sums of money largely in excess of their just and lawful clains, and that moneys appropriated to the petitioner's own use during his minority were so carelessly disbursed and so excessive in amount that the four several decrees, whereby the executor's accounts have been from time to time judicially settled, ought to be opened for affording him opportunity to interpose objections. If nothing had occurred since the entry of these decrees to forbid my reviewing the accounts to which they relate, I should feel bound, in view of the allegations in the moving papers, to grant the petitioner the relief for which he prays, or at least to direct the taking of testimony for ascertaining whether or not he had suffered any injustice. But there is, as it seems to me, an insuperable obstacle to either of these courses. In March, 1881, an agreement in writing was entered into by the petitioner and his three brothers. That agreement purports to have been executed for the purpose of effecting an adjustment of advances made to the children, and of their interests in their father's estate, and it provides for a distribution of the entire estate, except such part as the executors may find it necessary to reserve for satisfying the testator's provisions for the benefit of his widow and of certain other beneficiaries. The executors, in pursuance of such agreement and of the subsequent adjustment effected between the parties, proceeded to make distribution. I think that the petitioner became thereby estopped from making such objections as he now seeks to interpose in this proceeding. He claims that he had then but recently reached his majority, that he was not advised as to his rights or as to the condition of the estate, and that he was induced by the executors or some of them to become a party to an agreement into which he would not have entered had he been made fully acquainted with the facts. He accordingly asks that such Matter of the Several Accountings, &c., of William Tilden, deceased. agreement be ignored, and that he be permitted to attack the accounts which are claimed to be thereby adjusted. Manifestly, the rectification of any injustice which the petitioner may have suffered by reason of the settlement and distribution referred to would practically involve the rescinding of the compact between the testator's children, upon which they and the executors have acted, and would also involve a disturbance of the allotments which have been made in pursuance of its provisions. I have no power to enter into any inquiry as to the validity of this agreement as between the persons who executed it. It is not apparent how, in the absence of such power, I can hold the executors amenable to my jurisdiction for their connection with the settlement in question. To effect the purpose sought to be accomplished by the petitioner, the agreement must be directly assailed and set aside, or the executors in some action for that purpose be made responsible for any injury which the petitioner has suffered by their action in inducing him to become a party to such agreement. Neither relief is it within the power of the surrogate to grant. Petition denied, without costs. An appeal from the order of the surrogate was taken to the general term of the supreme court, who reversed the order and entered an order directing the four decrees to be so far set aside and vacated as to allow the charges drawn in controversy by the applicant to be made the subject of future investigation (See case reported, 67 How, 447.) A motion was made on behalf of the executors to vacate certain orders heretofore entered, and for a rehearing of the appeals heretofore determined against them. The following is the opinion of the general term on such motion: DANIELS, J.-The appeals taken in the proceedings were decided by this court in the early part of the year 1884, and after the forms of the orders had been settled, but before the VOL. I 53 Matter of the Several Accountings, &c., of William Tilden, deceased, direction was given for their entry, an application was made on behalf of the executors for the reargument of the principal appeals, and also for an order permitting the surrogate to correct and supply alleged deficiencies in his return. The case presented in support of the appeals was thereupon re-examined, and the conclusion was adopted that a reargument could be of no benefit to the executors, and their application so far was denied. It was not decided then, neither had it been when the decision was first announced, that upon a re-examination of the accounts of the executors, they could be held responsible for anything beyond what they had been charged with by the decree of the surrogate. But it was concluded that a proper case had been made to appear, permitting the appellant, who was one of the next of kin of the testator, and a devisee and legatee under his will, to secure a re-examination of the accounts of the executors, after he had attained the age of twenty-one years, which he did shortly before his application was made to the surrogate for liberty to make that re-examination. It was claimed in support of the application, that during his minority his interests in the estate had not been protected as they should have been upon the several accountings which had taken place. And by an examination of the case containing the accounts, the result was considered to be sustained that he was entitled to a further hearing before the surrogate, in which he should be at liberty to contest the large charges made against him in the accounts of the executors. Whether they improperly charged him for any sums of money contained in their accounts, or he could succeed in showing their charges to be excessive, or in any manner unfounded, was not a matter determined by the decision of the court. But all that was held was that sufficient had been made to appear, in view of the circumstances disclosed by the case, to entitle him to a full and complete investigation of the charges made by him against the executors. The direction was intended to be given as much in their interest as it was in his, Matter of the Several Accountings, &c., of William Tilden, deceased. to enable them, if his charges should prove to be unfounded, to be properly vindicated against them. It may be, as it was attempted to be shown in support of the application for the re-argument, that the items relied upon justifying the decision announced were not as large as they were deemed to be on the examination of the accounts which took place. But even if they were not, they were sufficiently formidable to justify the decision of the court in directing that a further investigation, as to their legal and equitable property, should be made at the instance of the person whose share in the estate of his father was affected by them, and accordingly the motion for a reargument of the two appeals affecting the executors was denied. After this denial an order was made on behalf of the executors directing the return of the surrogate to be transmitted to him for further consideration and amendment, in case it should be found to be deficient, and in the order giving that direction, a further hearing was provided for in case that should be rendered necessary by changes in or additions to the surrogate's return. The chief complaint then made was, that the paper contained in the return and designated as exhibit A, and the testimony of a witness taken in the proceeding before the surrogate should form no part of the papers upon which the appeals should have been heard and disposed of. This was for the first time raised after the appeals had been heard and decided. No previous intimation that the case, as it was presented, was in any respect defective. But it was assumed upon the argument by both parties to be in a proper condition for the consideration and decision of the appeals. But as there was alleged to be a misapprehension concerning its contents, and that it was first discovered after the decision had been announced, an order transmitting the return to the surrogate was made. The examination which was thereupon made by the surrogate resulted in a certificate that the printed case was correct in both the particulars to which objection had in this manner |