In re Stevens , 40 Misc. 377 ( 1903 )

Davis, S.

This is a proceeding instituted by Margaret J. Stevens, a beneficiary and legatee named in the will of Franklin Stevens, deceased, requiring the acting executor to show cause why her legacy should not be paid.

The acting executor files a verified answer to the petition alleging that the legacy has been fully paid, and that all matters sought to be reviewed and considered in this proceeding were judicially settled by a decree of this court granted December 27, 1901.

It appears that by the terms of the will of the said testator this petitioner was to receive the interest and income of certain investments directed by the will to be made by the executor, and that certain expenses for the care and repairs and for the preservation of the property were to be charged, some to the corpus of the estate; others to the income, and some to the petitioner’s share of the income.

Without going into details as to the merits of the several items, or whether they are promptly chargeable against certain funds-of the estate, we think it sufficient to say for the purposes of this proceeding, that all those matters were fully considered,, and judiciously settled, in an accounting had in this court, in which all parties were cited and in court, and a decree granted December 27, 1901.

The petitioner in this proceeding claims that the decree was erroneous, and that the surrogate committed an error in decreeing certain expenses to be a charge upon the widow’s share of the-income. Whether that be so or not, we do not think that that question ought to be reviewed in a proceeding like this, commenced by an order to show cause. If the surrogate erred, and the decree is erroneous, the decree could have been appealed from, and the error corrected, or the decree could have been opened, which the law permits to be done under certain conditions, and when a sufficient cause is shown.

The court in this preceding is not asked to open, modify nor to vacate the decree of December 27, 1901, but we are asked to make another decree, which would be in direct conflict with the one already granted.

■So long as the decree of December twenty-seventh stands unreversed and unmodified, we think that all parties are bound by it, and that it ought not to be rendered null and void as to a material and substantial part of it, by another proceeding, commenced by an order to show cause.

Motion to dismiss the proceeding must be granted.

Proceeding dismissed.