In re the Accounting of Underhill

The order in this matter must be affirmed. The original proceeding was one for the judicial settlement •of the account of the executor before the surrogate. This ■officer can exercise only such jurisdiction as has been specially conferred by statute, together with those incidental powers

The Code of Civil Procedure now regulates an accounting-by executors or administrators, although its provisions are mainly a transcript from the Revised Statutes upon the subject, as amended or enlarged by particular statutes passed since their adoption.

The decree upon an accounting of this nature is conclusive upon each party to the proceeding who was duly cited or appeared, and upon every person deriving title from such party as to the validity of a debt, claim or distributive share of the estate, if not disputed, or where, if disputed, it has been established. (Code of Civ. Pro. § 2743.)

It is claimed that in establishing the validity of a debt,, claim or distributive share, if disputed, the surrogate must, have power to determine not alone the existence thereof, but. that he can also decree its payment, and that hence he had in this case jurisdiction to enter the decree providing for the-repayment to the executor by the legatee of the amount which the executor had overpaid him. I do not think such a result follows. It is to be remembered that it is the executor who is rendering his account, and that all those who are cited as-interested in such accounting are cited because of such interest, and to that extent are parties thereto, and are bound by all that is properly decided thereon. But it is as parties to the-accounting that they are before the court, and they are not in any. sense parties to a proceeding to enforce the collection of an alleged debt existing in favor of an executor against a person who is thus cited, because the proceeding is in no sense of such a nature. The claim that the executor makes of an alleged overpayment by him to a legatee, is a matter, so far as a recovery thereof by the executor is concerned, between him and such legatee. In his accounting the executor charges himself with all the assets of the estate which he has received, and credits himself with the payment of such items as bethinks are chargeable to the estate. In deciding upon the

The debt or claim, which is spoken of in the above section as undisputed, or if disputed, established, is one due from the estate and not from a third person to the executor, and the decree determines to whom the debt is payable, the amount thereof and all other questions concerning the same. The decree also determines as to the validity of a distributive share of the estate. The amount of the distributive share due any particular person must be determined by this decree, and, therefore, it is open to investigate not alone the original amount of such share, but also what payments have been made upon such original amount in order that a final decree maybe made for distribution and of the amount thereof to each person entitled to any share. An overpayment made by the executor to any person entitled to a distributive share does not in any way diminish the amount of the estate which the law says is in the executors’ hands for distribution. The law does not recognize any such overpayment, and does "not, therefore, permit the executor to credit himself with the amount of the excess. In legal contemplation the sum is in the hands of the executor as assets of the estate which he must pay over to the parties entitled thereto.

An affirmative judgment in favor of the executor against the person to whom he made the overpayment, to recover such excess, is a totally distinct matter, and is not embraced in the subject-matter of the accounting. There is no machinery provided in the Surrogate’s Court to enforce such a judgment.

The decree js one in which the directions are for the executor. It directs him to pay and distribute -the amount of the estate found in his hands to the persons entitled according to their respective rights, and the surrogate, can enforce obedience to such decree against the executor.

The statute is silent as to any directions to be given third

An accounting is provided for in the succeeding sections of the Code, and the settlement of the accounts is made by the •decree, and the effect of the decree therein is declared by the section already discussed. Subdivision 4 gives him power "to enforoe the payments of debts and legacies. This does not mean a power to enforce payment of an ordinary debt due to the executor from a third party. Ho one has supposed it was intended by this subdivision to invest the surrogate with jurisdiction as a common-law tribunal to enforce the collection of debts due the estate or the executor. It had reference more to the enforcement of payment of a debt due from the estate. The same power to enforce payment by the executor of a legacy is given' in the same subdivision and as part of the same sentence. It, at all events, does not include such a case as this. The sixth subdivision gives him power to administer justice in all matters relating to the affairs of decedents according to the provisions of the statutes relating thereto.

What the jurisdiction is that is conferred upon the surrogate must be determined by reference to the particular statutes themselves. The subdivision in question confers no additional power or jurisdiction upon him, but it enjoins upon him the •duty of so exercising the powers conferred upon him by the provisions of the statutes that justice shall be administered.

It is said that it would result in an unnecessary amount of litigation to hold that the surrogate has not the power contended for, as, in such case, the executor must sue the legatee and go into another accounting for the purpose of showing the •overpayment, or, if the decision of the surrogate, as to the

The surrogate has jurisdiction to determine the amount of these payments to the legatee, which the executor shall have-credit for, because upon the determination of that fact may depend the question of the amount of assets with which the executor is to be charged for the purpose of decreeing distribution thereof. But because the surrogate has power to determine this fact, it does not at all follow that he must, therefore, have power to give judgment for the recovery by the executor from the legatee of the amount of the excess paid him by such executor. The power to decide the fact as to the payment springs from the power of the surrogate over the accounts of the executor, and his power to allow the legal and disallow the illegal payments which the executor may have made, and which he claims in his account. Having this power, it may well be that all facts necessarily determined by the surrogate, and which are material in the conrse of the

It is, however, urged by the appellants that if there were no jurisdiction to incorporate in the decree the provision which the surrogate has set aside, such provision was but part of a decree upon a sub j ect-matter over which he had full jurisdiction; and that any mistake made in any of its parts was an error reviewable on appeal, but the whole decree must stand as it was entered until a reversal thereof or a part of it on such appeal.

This is not such a case. It is an affirmative, special and separate judgment, although in form contained in the general decree. And it is a judgment which the surrogate was, as we have seen, wholly without any jurisdiction to enter. He cannot obtain jurisdiction to enter it by formally making it a part of a decree which he has authority to make, nor does he by

We see no error in the disposition of the case made by the courts below, and their orders should be affirmed, with costs.

All concur.

Order affirmed.