In re the Estate of Ferrigan

Letters of administration' upon this estate were issued to the appellant, Jennie Tinney, and to the respondent, John Flynn, by the . surrogate of the city and county of New York, the deceased having died intestate. John Flynn was a non-resident, living in the State of Rhode Island, and seems to have been an ignorant and illiterate man, without knowledge of proceedings of this character. He claimed to be the first cousin of the; deceased and one of her next of kin. After the death of the deceased, Flynn called upon Mr. Bernard J. Tinney, an attorney at law, to represent him in the proceedings in regard to her estate. Mr. Tinney suggested to Flynn that his (Tinney’s) wife would be pleased to act as co-administrator with Flynn in case he should ask for her appointment as such in the petition. This Flynn consented to, Mr. Tinney prepared the petition for the appointment of the administrators, and the same was executed by Flynn. Upon that petition letters of administration were issued to John Flynn and Jennie Tinney. Mr. Tinney then applied to the Lawyers’ Surety Company to give a bond, which bond was given, Flynn and Jennie Tinney signing such application," by which it was agreed that the administrators, would deposit all money or funds belonging to the estate which should come into then-possession or control in a trust company, all drafts or checks .drawn upon that fund to be countersigned by the surety company, and'also to deposit m the custody of the said surety company all bonds and mortgages or other securities, and. all -other' depositadle securities *3belonging to the estate; and upon the execution of - that agreement tlie surety company executed the bonds required by law upon the appointment of an administrator. Letters of administration were issued on October 19, 1894.

The estate consisted of a small amount of household furniture, which appears to have been sold at auction, realizing about $70, and a bond of $15,000, secured by a mortgage upon certain real estate in the city of Kew York. Upon the administrators qualifying, Mr. Tinney seems to have taken possession of this estate, to have collected the interest upon this bond and mortgage, which he deposited in his own bank account and used for his own purposes. 'The total amount of this interest thus received by Mr. Tinney was upwards of $2,400, and none of it was paid to the surety company under the agreement. Ro proceedings seem to have been taken by "the administrators or by Mr. Tinney to close the estate until December 7, 1896, over two years after the letters of administration were issued, when the administrators tiled an account of their proceedings with the surrogate, and the usual order of reference was made to hear and determine all questions arising upon the settlement of the ■account. These accounts appear to have been signed by both the administrator and the administratrix, but it is quite clear from the testimony that neither understood anything about them, they having been the production of Mr. Tinney, who had transacted all the-business of the estate, and appears to have really acted as administrator; and, although it is stated that all the accounts Avere explained to Mr. Flynn, it is quite eAddent from his testimony that he really understood nothing about them. By these accounts it appears that Mr. Tinney had charged $2,000 for his professional services and for disbursements made by him in connection with the administration of the estate, and that that amount had been paid to him by the administrators. Subsequently an application was made by Flynn for the removal of Jennie Tinney as such administratrix, upon petition and affidavits: The surrogate before whom this application was brought on for hearing stated that he was unable to determine the question of fact raised-by the affidavits, and appointed a referee to take such testimony- as would be produced by the respective parties, and -to report the testimony so.taken, with his opinion thereon, to the court. ..........

*4The appellant questions the power of the court to make this order, her objection, apparently, being that .the referee was requested to report the testimony taken, with his ¡opinion thereon, to .the court, and that there is no authority for the surrogate to request the opinion of the referee upon testimony taken before him. This objection seems to be frivolous. By section 2546 of ithe Code of Civil Procedure it is provided that “ in a special proceeding, other than one instituted for probate, or revocation of probate of a will, the surrogate may, in his discretion, appoint a referee to take; and report to the surrogate the. evidence upon the facts, or upon a specific question of fact,” and to make a report thereon, subject, however, to confirmation or modification by the surrogate-. Certainly!, if the surrogate has power to appoint a referee to take the testimony upon a question of fact before the surrogate and to make a‘report thereon, he has power to direct the referee to report, with j his opinion, upon the evidence taken. A report with the opinion; upon evidence taken is, in substance, the same as a report upon the question of fact pending before the surrogate ■ which the section of the Code in question . authorizes the surrogate to refer toj a referee to report upon. But if the order was broader than.the ’statute allowed, it was the duty of any one aggrieved-to appeal fixJm it. The proceeding upon the order before the referee was not vbid, nor was the surrogate, upon the'corning, in pf the report of-the ¡referee with the testimony taken by Mm, prevented from proceeding upon such testimony and deciding, the application. j

The appellant also strenuously objects to the proceeding before, the referee upon the ground that, she did not receive fourteen days’ notice, which she claims is required upon a hearing of this kind. This, however, was not thfi trial of' the issues joined in an action. Section 977 of the Code, ¡which requires a notice of fourteen days, relates .only to the trial tif such issues in an action. There seems to be no provision of the Code as to the notice pf a hearing before a referee in such a proceeding as the present, .All that -is required is that reasonable notice ojf the proceeding should be given to the adverse party. This notice was given to the appellant ten days before the day fixed by the referee for proceeding under the order of reference, and such notice Mas ample. Upon the day fixed for the hearing the' appellant appeared before the referee at the hour *5named, but at that time the referee was actually engaged in court trying a case, of which faet the appellant’s attorney had notice. Fotice was also given to him that there were witnesses to be examined on behalf of the petitioner, and that the referee would be in his office at four o’clock on that afternoon. This notice was given to the appellant’s attorney by the referee in person before the time fixed for the hearing, and also by the representative of the respondent at the office of the referee at the time fixed. This was equivalent to an adjournment by the referee of the hearing until four o’clock of' the same afternoon. The appellant failed to appear at that time when the testimony of two witnesses was taken, it being understood that the right of the appellant to object to such testimony and cross-examine the witnesses at a subsequent hearing was reserved. An opportunity to cross-examine the' witnesses was subsequently accorded to the appellant, who then refused to proceed with the cross-examination. There was no specific objection made to any of the testimony of the witnesses taken before the referee in his absence. Assuming, however, that this proceeding was somewhat irregular, the appellant sustained no injury, as we think that upon the testimony offered by the appellant upon the hearing before the referee, the surrogate was not only authorized, but was required to make the decree which he did. The referee subsequently proceeded to take the testimony offered by the respective parties, when it •appeared by the testimony offered by the appellant that this respond•ent, an ignorant and illiterate man, had retained Mr. Tinney to protect his interest; that Mr. Tinney had procured his wife to be •joined as administratrix with ■ the respondent as administrator, and that he (Mr. Tinney) immediately took possession of the property of the estate, neglected to proceed in a proper and orderly manner in the settlement of the estate, appropriated the income thereof to his own use under the guise of acting as attorney for the administrators, and then proceeded to make a charge against the •estate of $2,000 for his professional services, which was grossly ■excessive and out of all proportion to the services rendered or the -amount of the estate, and procured the administrator and administratrix to sign an account which recited that such payment for professional services had been made, and endeavored to have such •accounts passed and such payment allowed.

*6It is unnecessary for us to further consider this testimony. We are satisfied that the surrogate was required to' make the decree that he did, and that .it should be affirmed.' The order appealed from was in the discretion of the surrogate, and, under the circumstances, was., entirely proper. That order is also affirmed. We also approve of' the disposition that the surrogate made of the costs of- this proceed-. ing, and the costs of this appeal should be directed to be paid by the appellant personally.

Patterson, O’Peien and McLaughlin, JJ., concurred.

Decree and order of surrogate affirmed, with costs to be paid by the appellant personally.