In re Tobin

estate. The will disposes of the testator’s whole personal estate. She therefore takes no distributive interest as widow, (Rev. St. p. 2565, § 75, 8th Ed.,) notwithstanding the fact that the legacy to her is not mentioned to be in lieu of her legal rights. She is, however, entitled to receive the $150 given her by statute, (Sheldon v. Bliss, 8 N. Y. 31 ; Vedder v. Saxton, 46 Barb. 188 ,) which appears not to have been paid to her. As to the bank-account, there is no testimony showing how much of the account belonged to each, and the presumption is that at least one-half of it belonged to the husband. Gelster v. Bank, (Gen. Term, 4th Dept.) 17 Wkly. Dig. 137 . Catharine had the legal right to draw the money from the bank, and she holds, as trustee, any part of it which belongs to the estate of the deceased. Mulcahey v. Bank, 89 N. Y. 435 ; Gaffney v. Public Adm'r, 4 Dem. Sur. 223. This proceeding is for a judicial settlement, and in it the rights of the legatees under the will must be determined by this court, which has jurisdiction to settle and adjust the conflicting rights and interests in and to the fund held, or which ought to be held, by the executors for distribution. Riggs v. Cragg, 89 N. Y. 479 , 491. In the case of Rogers v. Murdock, 45 Hun, 33 , 9 N. Y. St. Rep. 660 , it was held that the surrogate, on a judicial settlement, could charge an executor with the amount due upon certain notes made by a legatee to the testator, and deduct this amount from the amount of the legacy, although the executor could not have maintained an action upon the notes, more than six years having elapsed between the making of the notes and the death of the testator. James Tobin and Catharine Tobin are both parties to this proceeding, and I am of opinion that this court should, so far as it has power to do so, settle their respective rights in the estate, including the bank-account. The only money still unpaid Catharine Tobin is the $150 mentioned. At least this amount should be charged against the executors as part of the half of the bank-account held by Catharine Tobin in trust for this estate, and the amount thus charged against the executors be by them paid to James Tobin, as residuary legatee, and Catharine’s claim thereto thereby extinguished. As to any further interest the said deceased had in said bank-account this court has no power to make a decree directing Catharine Tobin to pay over. Although the executors have not collected from Catharine Tobin the interest of the deceased in the bank-account, and have paid to her the legacy of $1,000, without retaining such interest therefrom, still I do not think the evidence in the case sufficient to charge them personally therefor; but the decree should provide that the executors shall execute an assignment to James Tobin of all such interest, to be held by him to his own use.