CARPENTER V. HISTORICAL SOCIETY.

that the testator supposed his wife to have been the absolute owner of the property devised and bequeathed to her, his ignorance on that subject will not excuse him for pursuing a course that rendered this litigation necessary in order to enable his children to recover their rights.

A decree will be entered according to the views expressed above.

WESTCHESTER COUNTY.-HON. OWEN T. COFFIN, SURROGATE.-September, 1883.

CARPENTER V. HISTORICAL SOCIETY.

In the matter of the probate of the last will and testament of THOMAS WRIGHT, deceased.

An unincorporated association, having power to take, under a will, a pecuniary legacy to be devoted to specified pious uses, has a right to intervene by attorney upon, and become a party to, the proceedings for probate.

By a codicil to the will of decedent, he bequeathed “to the Historical Society of the County of Westchester, of which James Wood is now president, the sum of one hundred dollars, to be used and applied to procuring and placing a suitable monument, to mark the spot where the soldiers, during the Revolution, were buried, at or near St. Mark's Church, in the town of Newcastle." The Society was also made a contingent devisee. Francis M. Carpenter, the executor, propounded both will and codicil for probate. On the return of the citation, some of

CARPENTER V. HISTORICAL SOCIETY.

the heirs-at-law and next of kin filed objections against both; and the Historical Society, by attorney, asked leave to appear in support of the codicil. The executor and St. Mark's Church objected that the Society was not legally incorporated, and could not, therefore, intervene and be permitted to become a party to the proceeding, inasmuch as it had no capacity to take as legatee or devisee.

R. S. HART, for executor.

R. HART, for St. Mark's Church, legatee and devisee.

M. G. HART, for Historical Society.

THE SURROGATE.-The bequest of the $100 to the Historical Society was for a pious use, and, therefore, it is immaterial whether the Society is a legal corporation or not, as, without being incorporated, it was competent to take for such a purpose (Potter v. Chapin, 6 Paige, 639; De Witt v. Chandler, 11 Abb. Pr., 459; Owens v. Missionary Soc., 14 N. Y., 380). Hence, the Society has a right to intervene and become a party to the probate proceeding as a legatee named in the codicil. It is unnecessary, therefore, to determine now the question discussed as to whether it is incorporated so as to be competent to take under the contingent devise contained in the codicil. The objection is, therefore, overruled.

Ordered accordingly.

INDEX.

ABATEMENT.

A proceeding, for the judicial settlement of an executor and trustee's ac-
count, abates by his death occurring before the matter is submitted to
the court. Boerum v. Betts, 471.

ACCOUNTING.

1. The accounting which a Surrogate's court may exact, under Code Civ.
Pro., § 2606, from the personal representative of a deceased executor or
administrator, upon the petition of the latter's successor, does not ex-
tend to all the property of the first decedent which came into the pos-
session or under the control of petitioner's predecessor, but only to such
of the trust property as has come into the possession or is under the
control of the accounting party. Le Count v. Le Count, 29.

2. A creditor does not lose his right to intervene, under Code Civ. Pro.
§ 2731, and be treated as a party to an accounting, by omitting to present
his claim to the personal representative, in pursuance of a notice requir-
ing presentation of demands against his decedent's estate. Greene v.
Day, 45.

3. Whether, upon the judicial settlement of an account, payment to counsel
can ever be sanctioned as a charge against the estate, when it recom-
penses services which have already been the subject of taxation by the
Surrogate, and for which the accounting party has been granted the
statutory allowance, quære. Walton v. Howard, 103.

4. An executor is, as such, a person interested in the estate" of a dece-
dent, under whose will his testator was a beneficiary, so as to entitle him,
under Code Civ. Pro, 2726, to petition for an accounting by the first
decedent's executor; and he is not precluded by the circumstances that
the latter is his co-executor under the second decedent's will, who, after
qualifying as such, had procured a decree judicially settling his account,
as the first decedent's executor, before petitioner qualified and received
letters. Eduards v. Edwards, 132.

5. Decedent, who died in 1868, gave, by his will, the bulk of his estate to
his wife, and named as executors his three sons, A., B. and C., of whom
only A. and B. qualified. The widow died in 1871, giving, by her will,
the bulk of her estate to, and naming as executors, A., B. and C., of
whom only A and B. qualified. In 1876, a creditor of the first decedent

VOL. I.-39

having filed a petition that the executors account, A., the sole acting ex-
ecutor, petitioned for a voluntary accounting, citing none of decedent's
heirs, next of kin or legatees to attend, and procured a judicial settle-
ment of his account by decree in October of that year. In 1882, C.
having qualified as executor of the widow, and petitioned that A. be
required to account as executor of the first decedent, and that certain
objections filed by him (C.), to the account as settled, be considered,
A. contended that he, the accounting executor of the first decedent, be-
ing the sole acting representative of the widow's estate, the latter was
concluded by the decree already rendered. C. was not, in his own right,
a necessary party to A.'s accounting.-Held, that C., though not a neces-
sary party, either in his personal or in his representative capacity, to
A.'s accounting, had acquired new rights by qualifying, as executor of
his mother's will, and that, though his objections to a settled account
could not be entertained, the decree of settlement was of no effect
as to him in his capacity as executor, and he was entitled to a new ac-
count. Id.

6. Upon an executor's accounting, the Surrogate's court will not entertain
objections to the disbursement of sums paid by him as costs and coun-
sel fees, on the proceedings to prove decedent's will, pursuant to the
decree therein rendered. Campbell v. Mackie, 185.

7. The probate court of another state is not a court of competent jurisdiction
to make a decree discharging administrators appointed by a Surrogate's
court of this State from their obligation to account to the latter court
for property of decedent received by them, and made subject, by the
laws of this State, to the Surrogate's jurisdiction. Duffy v. Smith, 202.
8. Decedent died intestate in August, 1876, in Connecticut, where letters of
administration upon his estate were issued, out of a Probate court, to
M.. in September of that year. In 1877, letters of administration
upon his estate were issued by the Surrogate of New York county, to
D. and K., upon D's affidavit that decedent left assets in that county.
In 1878, M. was removed by the Connecticut court, and D. and K.
were appointed in his stead. In 1881, D. and K. filed accounts with
the Surrogate here, pursuant to an order obtained by one of the next
of kin, showing $7,600 to have been collected and come to their hands
in New York county. The account, being contested, was ordered to a
reference, pending which the administrators were cited by the Connec-
ticut court to appear before it, on July 3rd, 1882, and account, which
they did. On July 6th, they filed their account there, showing a deti-
ciency of over $10,000, and obtained a decree allowing the same, and
awarding them and their counsel an allowance of $3,750. A copy of
the citation was directed to be posted on a sign post and published
in a town newspaper. The Connecticut accounting was not contested.
On a motion, before the Surrogate here, to vacate the order of refer-
ence, and dismiss all proceedings, on the ground of want of jurisdic-
tion, and of res adjudicata,--Held, that the Surrogate had authority,
when he first assumed jurisdiction, to pass upon the administrators'