p. 954These three took a conveyance of the Camp farm, subject to the mortgage debt of $11,000, and assumed and agreed to pay it. Of this surrender, transfer and agreement the petitioner and her brother, James M. Brown, who were then infants, had no notice. Bpt the father of said infants notified the executor at the time of this transfer and division of their claim or interest in the aforesaid $300 legacy. In the division of the property between themselves, after paying certain debts amounting to $5,932.33 and allowing James Mitchell upon his claim $4,200 over and above the claims of the estate against him, they took the remainder.
James Brown assigned his interest in the $3,000 legacy to Minnie, and thereafter she brought suit and obtained a judgment in the supreme court against the executor for the amount of her interest in said legacy. After obtaining such judgment, she instituted these proceedings in the surrogate’s court, and the executor appeared and answered that he had in his hands “no assets, money or property of any name or nature in his hands belonging to the estate of said testator; that on or about December 17, 1873, this executor turned said estate over to James Mitchell, Isabella M. Wood and Sarah Witherell, as he claims, in pursuance of the provisions of the last will and testament of said Milo Mitchell, deceased; that the legacy and judgment mentioned in the complaint were not a lien or in any manner charged upon the real estate of said testator, and that therefore there was no fund from which the same could be paid.”
He was ordered by the. surrogate to render an account, which he did. His account was contested and the surrogate finally held that he should be charged with the amount of the personal estate shown by the inventory to have been received by him and be credited only with his commissions and payments set forth in the foregoing statement, which left $8,720.19 to be accounted for by him, from which he should pay to the said Minpie Bell Brown the full amount of said claim and interest, amounting in the whole to the sum of $2,208.66, together with the sum of $320.73, the costs of said Minnie Bell Brown in these proceedings, making a total of $2,529.49.
Walter Ballou, for app’lt; John S. Baker, for resp’t.
We do not think that the appellant’s claim that the surrogate’s court had no jurisdiction of the proceedings instituted to compel the payment of this claim, can be sustained. Section 2717 of the Code of Civil Procedure authorizes such a proceeding. There was no written, verified answer which set forth facts that cast any doubt upon the petitioner’s claim ; nor was there any denial of its
p. 955validity or legality, either absolutely or upon information and belief. Moreover, the validity and legality of the respondent’s claim had been conclusively established, by a judgment between the parties, rendered in an action in the supreme court. The answer set up that there was no money in the appellant’s hands with which to pay the petitioner's claim. Such an answer did not require the surrogate to dismiss the respondent’s petition. It is only when it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction, that the surrogate must dismiss the petition. Code Civ. Pro., § 2718 ;
Matter of Macaulay, 94 N. Y., 574 . Obviously such was not the case here. The only question before the surrogate, on the merits, in this proceeding was, whether there was money or property belonging to this estate which was applicable to the payment of the respondent’s judgment, and which might be so applied without affecting the rights of others entitled to priority or equality of payment. To determine that question an accounting was ordered. On the accounting it was held, that there was money or property to the amount of $8,720.19 for which the appellant was liable to account, and which to the extent of the respondent’s judgment and costs should be applied in payment of her claim.
But the appellant claims that inasmuch as he had transferred the entire estate to the residuary legatees, who agreed to pay the debts of the the testator, and inasmuch as they had paid debts to an amount which, if added to the amount of those paid by him, would exceed the value of the personal estate which came into his hands, he should not be required to pay the respondent’s judgment against him. The surrogate has held otherwise. The appellant’s method of discharging the duties of executor and trustee is novel, but not to be commended. If that method of disposing of a trust estate were to be upheld, a most dangerous precedent would be established. These legatees may have paid themselves and other creditors the amount claimed but the executor has not. Nor has the executor passed upon the justice or validity of these claims, except that of James, which he had already rejected. It maybe that these claims were just and valid, and would have been allowed and paid by the executor if they had been properly presented to him, and he had remained at his post of duty. They were, however, neither allowed nor paid by him. They were voluntarily paid by these legatees. This executor could not delegate his powers, as such, to these legatees, nor do the
p. 956payments by the legatees inure to his benefit as against this respondent.
Matter of Keef, 43 Hun, 98 ; S. C., 6 N. Y. State Rep., 587. The debts against this estate are also evidently barred by the statute of limitations.
At law an executor will be charged with all the assets that come to his hands to be administered, and he must discharge himself by showing a legal administration of all of them. A court of equity will, however, adjust the accounts of the executor upon equitable principles. 1 Perry on Trusts, § 407. If the appellant had administered his testator’s estate as he was in duty bound to do, on a final settlement before the surrogate the rights of the respondent and her brother, as well as the rights of the other legatees under the wifi, could have been determined and adjusted, and the appellant would then have been properly discharged from his liability as such executor. Although the duty of this executor was plain, yet, instead of discharging his legal obligations to the creditors and legatees, he retains for his own services at least five times as much as the surrogate finds him entitled to, and with knowledge of the respondent’s claim, surrenders the whole estate to the other legatees, leaving these infant heirs of the testator wholly unprotected, and the payment of their legacies unprovided for. There may have been no collusion between the appellant and the residuary legatees, still, the facts are not such as to establish any very strong equities in favor of this executor. We think the surrogate was right in holding that the payments made by these legatees were not payments by the executor; that there was sufficient property in the hands of this executor to pay the respondent’s judgment and costs, and in making the decree appealed from.
It fofiows that the decree and order appealed from should be affirmed, with costs.
Hardin, P. J., and Follett, J., concur.