#### In re ARKENBURGH’S ESTATE.

(Supreme Court, Appellate Division, Second Department.

December 22, 1896.)

1. Probate Practice—Orders—Entry and Service.

An order requiring an executor to file an account is not rendered ineffectual by the fact that it was entered and served after the time designated for filing the account, where the executor appeared by counsel at the hearing of the motion to require the accounting, and stipulated to file the account on the day named, and the order was made thereupon.

2. Same—Accounting—Citation.

An order requiring an executor to file a supplemental account may be made without the institution of a new proceeding by citation, when it is made in a pending proceeding for an accounting.

3. Same—Concurrent Remedies.

An action in the supreme court against an executor for an account is concurrent with a proceeding in the surrogate’s court for the same relief, so far as within the jurisdiction of the latter court to grant it.

By his notice of appeal, the appellant declares his purpose to review two other orders of the surrogate’s court, made November 16, 1895, and January 11, 1896. The will of the testator was admitted to probate, and letters testamentary issued September 25, 1890. In October, 1893, proceedings for judicial settlement of the accounts of the executors were instituted, and the accounts filed in such proceedings were brought down to and including January 4, 1894. A decree was made by the surrogate therein as of December 12, 1895, and entered on the 30th day of that month. Upon the petition of a legatee, showing occasion for it, an order was made by the surrogate requiring the executors to show cause on the 16th day of that month why they should not render a supplemental account from and after January 4, 1894, and on that day the surrogate made an order granting the prayer of the petition, and ordered the executors to file such account on or before November 30, 1895. That was not done by the appellant. This order was entered December 13, 1895. By an order to show cause, the motion of the appellant, as executor, to vacate the order of November 16, 1895, was heard, and denied by order to that effect made January 11, 1896. Upon the petition of a devisee and legatee of the will, a citation was issued March 6, 1896, directed to the appellant, as executor, requiring him to show cause why the letters testamentary issued to him should not be revoked. He filed an answer. The matter afterwards came to a hearing upon the petition and answer, and on April 13, 1896, an order was made by the surrogate’s court to the effect that such letters be revoked, unless he filed such supplemental account within 10 days after service of the order. The appeal was taken from this order in July, 1896.

Appeal from surrogate’s court, Rockland county.

Judicial settlement of the account of Eliza J. Arkenburgh and Oliver M. Arkenburgh, as executors of Robert H. Arkenburgh, deceased. From an order made April 13, 1896, revoking the letters testamentary issued to Oliver M. Arkenburgh, he appeals.

Modified.

Argued before BROWN, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

Frederick M. Evarts, for appellant.

Charles Edward Souther, for respondent.

BRADLEY, J.

The first question requiring consideration is whether the appellant was brought within the provision of the statute which provides that on a petition, etc., praying for a decree revoking letters, the executor may be cited to show cause why decree should not be made accordingly, “where he has willfully refused, or, *966without good cause, neglected, to obey any lawful direction of the surrogate contained in a decree or order, or any provision of law relating to the discharge of his-duty.” Code Civ. Proe. § 2685, subd. 3. By order made November 16, 1895, pursuant to an order to show cause, founded upon petition of a legatee, the surrogate’s court directed that the executors file a supplemental account on or before November 30, 1895. This order was not actually entered until the 13th day of December following, and a copy of it was on that day served on the appellant’s attorney. As the time of the entry and service of the order was subsequent to that designated for filing the supplemental account, it is insisted that the order was not effectual as a direction to the appellant for such purpose. This contention would be well founded if he had not appeared by counsel at the time the motion was heard, and orally stipulated in open court, to file such supplemental account on or before the 30th day of the month. It also appears by the affidavit of such counsel that thereupon the surrogate directed that such account be filed on or before that day. As this was an order made in open court, with the knowledge and consent of the party represented by counsel, the entry or service of it was not essential to give it the effect of a lawful direction of the surrogate to him. The entries and records of the proceedings are supposed to be kept by the clerk of the surrogate’s court, the same as are those of other courts of record. Orders, when made, are deemed in his custody for entry, and, in legal contemplation, are entered as of the time they are made by the court. A different view may be taken of an order made by a judge out of court for the purposes of basing further proceedings upon it. Hence the entry of an order is essential to an appeal when the order is made by a judge out of court. Id. § 1304. This order, not expressly appearing in the outset to have been made in the then pending proceeding for the judicial settlement of the accounts of the executors, was afterwards so resettled as to show that it was made in such proceeding, and the order was so entitled nunc pro tunc. The default of the appellant was in his failure to file his supplemental account within the time prescribed by the order. It is urged on the part of the appellant that the filing of a supplemental account could not be lawfully directed without the institution of a new proceeding by citation. That may have been so if the proceeding for the accounting had not then been a pending one. Its pendency enabled the surrogate’s court to direct that accounting be completed so far as practicable by filing further accounts. This is an inherent power incident to the proceeding for a judicial settlement of the accounts of executors and administrators, and it may be required without the aid of a citation, although, if essential to recall attention of any of the parties interested to the matter, for the complete disposition of a further account, a citation may, and, of course, will, be issued for such purpose. But, as the direction to file the supplemental account was made in a pending proceeding, the rule that a citation is requisite to the commencement of one in that court was not essentially applicable for the support of •the direction given to file such account. It is true that the proceed*967ing had apparently been terminated by decree at the time the citation of March 6, 1896, was issued upon the petition of the legatee and devisee for the appellant to show cause why the letters issued to him should not be revoked. The court, nevertheless, by the order, made the revocation dependent upon his failure to file the supplemental account within 10 days after he should be served with the order. As the citation was issued to him alone, it evidently was not intended that a new proceeding was thereby instituted; but that it was founded solely upon his willful refusal or neglect to obey the direction given by the order of November 16, 1895. The practically useful effect to be realized from the filing then of such account was to result either from the opening of the old proceeding, or thereafter instituting a new one. This, however, may not be important, since the proceeding upon which the order is founded was pending when the unobserved 'direction by order of the surrogate’s court was given and disobeyed.

The appellant, as executor, appeared pursuant to such citation, and by his answer alleged matters upon which it is insisted in his behalf he was entitled to have a trial and decision, and, therefore, that it was error for the court to make the order which was made on the petition and answer. It would be so if any of the facts alleged in the answer taken as true would defeat the prayer of the petition. The appearance of the appellant was sufficient to confer jurisdiction of his person, and was effectual as such, unless qualified by facts alleged, showing a want of it. He alleges in his answer no facts tending to show any want of jurisdiction in that respect. It is not alleged in his answer, nor does it appear, when or where the citation was served upon him. It cannot be assumed that the service was made outside the county of Rockland. Although a nonresident of the state, he may, for aught that appears, have been served in that county. The circumstances attending the making of the order of November 16, 1895, have already been stated. The appellant does not allege any want of authority of the counsel, who did so, to appear for him when that order was made. In the view taken, the criticism of the service of it on December 13th has no essential importance upon the question of the validity of the order, or upon its effect as a direction to the appellant, and to charge him with the duty of obeying it in that respect. He further alleges that, as executor and as a legatee under the will, he, in December, 1896, commenced an action in the supreme court against the executrix and others interested in the estate for an accounting, and for other relief, which action was still pending. The remedy by action is not exclusive, but concurrent only with that for an accounting in the surrogate’s court, so far as it may be within the jurisdiction of the latter court to accomplish it. For the purposes of the question here, it is not necessary to inquire whether the action may serve any legitimate purpose not within the power of the surrogate’s court in the matter of an accounting. None of the facts alleged in the answer taken as true could be treated as injunctively or defensively effectual against the purpose sought by the petition, and therefore the surrogate’s court *968was permitted, for want of cause shown to the contrary, to make the order which followed. Nor is it seen that, in view of the reason for the order and its purpose, any legal interruption to the making of it arose from the appeal which had been taken by two of the legatees of the will from certain provisions of the surrogate’s decree. 'Hiere is now no less occasion to permit the executor to file the supplemental account than existed at the time the order following the citation of March 6,1896, was made.

The order of April 18,1896, should be so modified as to extend the time for filing the supplemental account 10 days from the time of service hereafter to be made of the order, and, as so modified, affirmed. Let the matter be remitted to the surrogate’s court to proceed therein. All concur.