Dakin v. Demming

Citations

• 6 Paige Ch. 95
• 1836 N.Y. LEXIS 288
• 1836 N.Y. Misc. LEXIS 98

Syllabus

<p>A surrogate lias no jurisdiction to cite the personal representatives of a deceased executor to account before him as the representatives of the first testator, when none of the effects of such testator came to their hands in that character.</p> <p>But upon the application of a person who as a legatee or distributee of the first testator is a creditor of the deceased executor, the surrogate has authority to cite the representatives of the latter to account for the estate of their own testator or intestate; and upon such accounting the surrogate is authorized to liquidate and determine the amount of the claim against the estate of such testator or intestate as the representative of the first testator.</p> <p>Where the surrogate has not jurisdiction of the subject matter of the suit or proceeding before him, no assent or submission of the parties can give him such jurisdiction. But where the objection to the jurisdiction is not taken before the surrogate, but is made for the first time in the appellate court, the appellant will not be allowed costs upon the reversal of the senierlce or decree of the surrogate, unless the same is found to be erroneous upon the merits also.</p> <p>Where the general guardian of an infant settles with the executors or personal representatives of the decedent for a legacy or distributive share of the estate due to his ward, the settlement is so far conclusive upon the infant when he arrives at full age, as to throw upon him the burthen of showing that there was error in the account upon which such settlement was made.</p> <p>The statute allowing to executors, &c. upon the settlement of their accounts, a compensation for their services applies to all settlements made after the passing of the original act, although the services had been performed before. And in cases coming within the statute, the surrogate has no discretion to refuse to allow to the executor or administrator the commissions established for such services,</p>