#### In the Matter of the Estate of Elizabeth A. Joslin, Deceased.

(Surrogate’s Court, Oneida County,

November, 1911.

Executors and administrators — Accounting and settlement—Procedure to obtain' accounting — Final accounting before surrogate — On application by personal representative — Petition — Necessity for petition.

.The Surrogate’s Court obtains jurisdiction to settle an.account filed by the executors of a deceased executor only by the filing of a petition for the settlement thereof, and the Surrogate’s Court should not proceed with the settlement of such an account until all persons interested in the estate have been duly cited.

Proceeding to compel the executors of a deceased executor to render - and settle an account of the latter’s proceedings.

B. A. Capron, for Brindcerhoff -0. Tharratt and Loraine Carrington, executors of Joseph B. Tharratt, deceased.

Erank Bowman, for Burton H. Loncks, committee of G. De Bne Buggies.

Sexton, S.

This is a proceeding.instituted by Burton H. Loueks, as committee of the person and property of George DeBue Buggies, an incompetent person, to compel Brinckerhoff C. Tharratt and Loraine Carrington, as executors of the will of Joseph B. Tharratt, to settle and account for the acts of Joseph B. Tharratt, as executor of the will of Elizabeth A. Joslin, deceased.

On September 28, 1910, a petition was filed by said committee, Loncks, for a compulsory accounting, and a show cause citation issued thereon, returnable October 10-, 1910, which citation, was- directed only to said, Bfinckerhofi O'. Tharratt and Loraine Oarrington; thereafter and on June 5,1911, said Brinckerhoff 0. Tharratt and Loraine Carrington, as execu*333tors, filed their account. Bo petition was filed with said account, and no citation issued thereon. On July 9, 1911, objections to said account were filed.

At the time of filing said objections, the court had acquired no jurisdiction in the accounting proceedings, and had no authority to proceed with the hearing of the objections, for the reason that no petition was filed with the account, and no citation issued.

An accounting in Surrogate’s Court is a special proceeding. . Section 2516 of the Code of Civil Procedure provides as follows: “ Except in a case where it is otherwise specially prescribed by law, a special proceeding in a surrogate’s court must be commenced by the service of a citation, issued upon the presentation of a petition. But upon the presentation of the petition, the court acquires jurisdiction to do any act, which may be done before actual service of the citation.” Under this section no citation could have been issued until after the presentation of a petition. The presentation of a petition gives the court jurisdiction to issue the citation and to proceed with the accounting.

Section 2606 of the Code of 'Civil .Procedure is the one under which the committee herein is proceeding, and said section contains the following provision: “On a petition

filed either by or against an executor or administrator of a deceased executor, administrator, guardian or testamentary trustee, or on a revival and continuation of an accounting; pending by or against such decedent at the time of his death, the successor of such decedent and all persons-who would be necessary parties to a proceeding commenced by such decedent for a judicial settlement of his accounts shall be" cited and required to attend such settlement.”

If Joseph R. Tharratt, in his lifetime, sought to account in the Elizabeth A. Joslin estate, of which he was executor, it would have been necessary for him to have cited all persons interested in said Joslin estate in order to have the decree binding upon them. It is quite as necessary in the attempted accounting herein to have all of the interested persons in the Joslin estate before the court, to the end that any decree made shall be binding upon them.

*334Said. Joseph B. Tharratt, deceased executor of the will of said Elizabeth A. Joslin, never had a judicial settlement of his accounts as executor in his lifetime, and no administrator with the will annexed has ever been appointed in said Elizabeth A. Joslin estate.

There being, no representative of the Joslin estate, all persons interested in said estate, who would have a .right to question the settlement in that estate 'by its executors, have a •right to notice of all proceedings which in any manner might •affect their rights in the said Joslin estate; and, until they are before the court, no proceedings can be had, or taken, which would be binding upon them or upon the said Joslin estate.

Bext of kin and legatees must be cited to attend an accounting by an administrator" or executor, even- though they may have assigned their interest to strangers, or executed former releases. Matter of Wood, 38 Misc. Rep. 64„ Matter of Walton, 38 id. 723, and cases cited.

The only persons in court are the incompetent and the executors of the estate of Joseph B. Tharratt, deceased. The Joslin estate cannot be brought in by stipulation, nor can statutory requirements be thereby cured, as the Surrogate’s Court can proceed in an accounting matter only upon the filing of a petition and the issuance of a citation to the parties entitled to notice.

• I will not dismiss the proceeding, however, but will permit the defects to be cured-by the filing of ,a petition for a judicial settlement and' the issuance of a citation thereon, and will hold the matter for final decision until such time as the Surrogate’s Court may be given full jurisdiction to decide the matters involved by the objections to the account, upon the merits.

Decreed accordingly.