p. 530taken for the balance only after such application. The deceased executor held four notes against Durkee. There is no proof or allegation in the record that these notes were not valid claims, or that there was any defense to either. They seem to have been given for money borrowed of the estate, and were loans which both parties would naturally expect to treat as advances upon the annuity to become due to the borrower from the same estate. There was thus equity and justice in the surrogate’s decree directing the debt due from the estate to be applied upon the debt due to the estate. Practically, though not in form, it adjudged against the executor’s estate in favor of Durkee the balance only after such application, and so viewed there might have been error, but was no want of jurisdiction. Such jurisdiction is now assailed on the ground that the revival of the accounting after the death of the executor was a new proceeding to which Durkee was not a party, and so there was no jurisdiction over him. It is doubtful whether that question was raised by the moving papers. Durkee cannot avail himself of the decree in his favor for the money due and at the same time insist that the decree is void as to him. Besides, there was a later accounting by the administrator of the deceased executor to which Durkee was a party which recognized the application already made, and settled the right of the mover in accordance with that application. We fail to discover any just reason why a court of equity should apply a part of the debt due from the estate a second time upon the debt of Durkee, and leave to the administrator only a difficult and uncertain remedy upon one of the notes against a party both nonresident and insolvent.
The order should be affirmed, with costs.
All concur.