In re Smith 34 N.Y.S. 1057

DYKMAN, J.

This proceeding was instituted in the surrogate’s court of the county of Rockland by John H. Smith, one of the execur tors-of the estate of John T. Smith, deceased, for an accounting of his proceedings as such executor, based upon a petition filed in the surrogate’s court on the 20th day of June, 1891, before George W. Weiant, then surrogate of Rockland county. All the parties interested., were duly cited. Testimony was introduced and taken before surrogate Weiant, and before anything further was done he became ill, and William McCauley, district attorney of Rockland county, became acting surrogate; and a few days before the close of his office as district attorney he signed a decree in this proceeding. A. 8. Tompkins, who had been counsel for the executor, then became surrogate; and a motion was made" before him to set aside or resettle the decree of Dist. Atty. McCauley, on the ground that it did not conform to the facts as disclosed by the‘testimony. That motion was certified to Frank Comesky, then district attorney of Rockland county, by reason of the disability of Tompkins, on account of his connection with the case as counsel. Comesky vacated the previous decree, and signed a decree in conformity to the findings previously made by him, and from that decree the present appeal was taken. The last decree allows the executor several payments which he had made which were disallowed by the first decree. In other respects, the two decrees are practically the same. The disbursements ^alio wed to the executor were ^11 actually made, and there is no sufficient reason why they should not be allowed. The largest claim is the sum paid to the widow for her right of dower, but the executors charge themselves with the whole sum received for the real property sold, and as they were obliged to pay the widow, who had a right of dower in the premises, it follows that the sum so paid to her must be deducted from the amount they received. The power to open and modify the first decree is expressly conferred by section 2481 ©f the Code of Civil Procedure. The decree should be affirmed, with costs to the respondents, to be paid from the estate. All concur.