In re the Estate of Waller 17 A.D.2d 854

In a proceeding by petitioner, Morton Miller, an attorney, for a compulsory accounting and other relief, the successor trustees under testator’s will appeal from an order of the Surrogate’s Court, Queens County, dated December 26, 1961, which denied their motion: (a) to vacate a prior decree, dated August 4, 1960, fixing petitioner’s fee for attorney’s services rendered to the trustees and directing the trustees to pay such fee; and (b) to vacate a prior order, dated October 17, 1961, directing the trustees to account. Order of December 26, 1961 affirmed, without costs. Even if it be assumed that a creditor who is entitled to a fee or to expenses of administration may not institute a proceeding to compel a testamentary trustee to account, nevertheless the trustees have failed to appeal either, from said decree of August 4, 1960, or from an order of October 16, 1961 which overruled *855their special appearance, or from the said order of October 17, 1961 which directed them to account. No reason appears why the decree of August 4, 1960 or the order of October 17, 1961 should be vacated, or why their enforcement should be stayed. In any event, the Surrogate, on his own motion had the power to direct the trustees to account (Surrogate’s Ct. Act, § 257-a). Beldock, P. J., Ughetta, Kleinfeld, Hill and Rabin, JJ., concur.