The receipt of money by the executor in his official capacity — a judicial accounting, with a balance against him of $2,975.70, followed by a decree requiring payment to those entitled to it, and an ineffectual attempt to enforce the decree by execution, are conceded facts. Upon a petition stating these things, and alleging that after demand made, the executor neglected and refused, "and now willfully neglects to obey the decree," he was, by order of the surrogate of Rensselaer county, required to show cause why he should not be punished for his alleged offense and contempt. In answer thereto, he made two affidavits, the averments of which the surrogate held insufficient, and imposing a fine to the extent of *Page 181 the moneys unpaid by the executor ordered that he be imprisoned in the common jail of the county until the fine and the costs of the proceeding were paid.
The General Term have affirmed the order in face of the dissent of one of its number. I do not understand that the dissenting member of the court doubted the jurisdiction or power of the surrogate to make the order appealed from, but in view of the alleged insolvency of the executor, and his declaration of inability to pay, thought he ought not to be punished for not paying. The contempt charged was in violating the decree or order which directed payment, and the investigation before the surrogate might properly have been limited to the matter contained in it, i.e., the service of the decree and the facts of the neglect constituting its violation. To those matters there was no answer. The truth of them was admitted, and the case clearly brought within the provision of section 2555 of the Code of Civil Procedure, under which the surrogate made the order in question.
The argument of the learned counsel for the appellant is placed upon the particular words of the affidavits of the executor. In effect they assert an early conversion of the trust funds to the exigency of private and individual business; next the transfer of that business and his stock in trade and real estate to his wife, upon no present consideration, but in application upon an old debt, and followed by no apparent change in possession or management; then, in consequence of this transaction, insolvency and inability to comply with the decree.
The learned judge whose opinion prevailed at General Term has sufficiently pointed out that the surrogate was not necessarily concluded by these bald and uncorroborated assertions of the defaulting executor, and, as the question is not only one to be determined upon evidence, at least conflicting, but also rests in discretion, which has not been unfairly exercised, we find no ground on which we can review his decision. (Code, § 1337;Cochrane's Exr. v. Ingersoll, 73 N.Y. 613.)
The appeal should, therefore, be dismissed.
All concur.
Appeal dismissed. *Page 182