#### In the Matter of the Estate of Lorentus Salisbury, Deceased.

*(Surrogates Court, Cattaraugus County,*

*Filed May 28, 1889.)*

1. Surrogate’s court—Power to vacate or modify decree—Code: Civ. Pro., § 2481.

Under section 2481, subdivision 6, of the Code, a surrogate’s court has the same power to vacate or modify a decree as the supreme court has to set aside a judgment.

2. Same—Fraud—Sufficiency of proof to warrant opening of deCREE.

Where a petition is presented to open a decree of the surrogate’s court on the ground of fraud, the fraud must be clearly established by proof sufficient to carry conviction that the end sought to be gained by the moving party would be obtained. A mere inferential or argumentative fraud will not be sufficient.

*4143. Same—Lapse oe time—Sufficiency of, to prevent opening decree.

In the case at bar many years elapsed before any action was taken to open the decree. There is nothing in the petition of the moving party, or in the evidence, to account for or excuse this long delay. *Held,*that the courts will refuse to set aside a judgment or open a decree after considerable time has elapsed (since the entry.

*C. D. Van Aernam,*for William H. Bard, petitioner; *W. W. Waring,*for administrators of William Elliott, opposed.

Spring, S.

In 1847 the surrogate of Cattaraugus county-issued letters testamentary to William Elliott and two others, as executors of the last will and testament of Lorentus Salisbury, deceased. The estate, which was a large one for those times, was managed in the main by-Elliott, and was under his management and control for many years. In 1857, in proceedings had for that purpose, ,a final settlement of the accounts of the executors was had in the surrogate’s court, and a decree was entered at that time, adjusting and settling the accounts, and determining the amount with which said executors were chargeable.

In 1866 two accounts were filed and two decrees entered, adjusting and settling the accounts of the said executors, and directing distribution of the funds and property on hand among the next of kin, which was made in accordance therewith. The will of testator directed his executors to support and maintain, out- of his property, one Emily Talbot during her natural life, and in pursuance of this power $1,200 of the fund committed to the executors were set apart for this purpose, and the income therefrom paid to her until her death, which occurred about one year ago. In the decree of 1866 this sum of $1,200 was directed to be paid to Elliott, to apply on his commissions as executor, he having consented to this disposition.

In December, 1874, Elliott died intestate, and administrators of his goods, etc., were duly appointed by the surrogate of Cattaraugus county, and at once assumed the duty and burden thereof. Upon the death of Miss Talbot, William Smith, the sole surviving executor of Lorentus Salisbury, deceased, filed his petition for judicial settlement, and brings into court for distribution the $1,200, the *corpus*of which had been directed to be paid to Elliott, as above stated. The administrators of Elliott appear and ■claim the money, in pursuance of such decree. One of the • next of kin and legatees of Lorentus Salisbury was Ann Salisbury, subsequently Ann Bard, the wife of the petitioner, William H. Bard. Mrs. Bard was a minor at the time of the settlement, in 1866, but shortly after attained her majority, and died in 1873, making her husband her executor and residuary legatee. Mr. Bard filed his petition, *415claiming this sum of $1,200 should be distributed among the next of kin of Salisbury, deceased, and bases his claim upon an allegation in his petition, setting forth that in 1866 Elliott testified before an auditor, to whom his. accounts were submitted for examination, that he had no-money belonging to the estate except such as appeared in. his account.

That as the petitioner claims there was in 1885, and continuously thereafter, a deposit in the Lake Shore National Bank, at Dunkirk, or its predecessor in business, of $1,615.61, in the individual name of Elliott, and a further credit to him of interest of $96.63. The petitioner claims this money in fact belonged to the Salisbury estate, alleging that prior to his appointment as executor he had gone through bankruptcy, and was engaged in no business during the years of his executorship to earn or accumulate any money, and charges him with fraud and perjury in procuring the entry of the decree in 1866.

I do not think the petition sets forth facts sufficient to justify interference with the decree of 1866 awarding this sum of $1,200 to Elliott in payment of his commissions. The charge of fraud is predicated upon a mere inference, to wit, that Elliott did not own or earn the deposit in the Lake Shore National Bank. This, certainly, would not be sufficient to convict Elliott of so grave a crime as embezzlement, simply because it was not generally known that he possessed this money, and that fact cannot militate against his honesty or truthfulness.

A surrogate’s court has the same authority to vacate or modify a decree that the supreme court possesses to set aside a judgment. Section 2481, subdivision 6, Code of Civil Procedure.

A supreme court would not set aside a judgment for fraud, unless the fraud was clearly established, certainly by proof sufficient to carry conviction that the end sought to be gained by the moving party would be obtained. *Frink*v. *Morrison,*13 Abb., 80; *Hill v. Northrop,*9 How., 525; *Smith*v. *Nelson,*62 N. Y., 286-288; *Olmsted*v. *Long,*4 Dem., 44.

The petitioner is guilty of very gross loches in making his application to open the decree. No appeal was taken from the decree of the surrogate entered in 1866. Elliott died in 1874. Administrators of his estate were promptly appointed, and the matters are permitted to remain undisturbed until this long time has elapsed. There is nothing in the petition excusing this delay. For aught that appears, the petitioner and next of kin may have known of the deposit in the bank shortly after Elliott’s death.

The courts refuse to open a decree or set aside a judgment after a considerable time has elapsed since their entry *416
      *Strong*v. *Strong,*3 Redfield, 477; *Corwithe*v. *Griffing, 21*Barb., 9.

There was nothing improper in the court setting apart this sum of $1,200 to pay Elliot’s commissions, if he saw fit to consent to the arrangement. He alone is the one injured by this method of procedure.

A decree will be entered adjusting and settling the account of the surviving executors, as filed, and directing the payment of the $1,200, less commissions and expenses, to the administrators of William Elliott, deceased, March 14, 1889.