In re the Accounting of Underhill

has received, and credits himself with the payment of such items as he thinks are chargeable to the estate. In deciding upon the allowance of such items the question determined is whether they are or are not proper charges against the estate, and unless the estate were liable to pay any particular item, it should not be allowed, notwithstanding the payment had been made by the executor.

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 may be 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 executor’s 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 is one in which the directions are for the executor. It directs Mm 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 parties to pay debts they owe the executor so that he can collect in the estate and distribute it. I think it was not intended to provide any such mode for the collection of debts due the estate. It is claimed that under § 2472 of the Code the surrogate had this jurisdiction, particularly under sub-divisions 3,4 and 6 thereof. Subdivision 3 gives him power to direct and control the conduct and settle the accounts of executors, etc. Nothing is therein stated as to the scope of such settlement or the character of suck accounting.

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 al

ready discussed. Subdivision 4 gives him power to enforce 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 over-payment, or if the decision of the surrogate as to the amount should be regarded as res adjudícata, then it would be a case of an action at law to recover back an excess of payment, the amount of which was already conclusively established by the surrogate’s decree, and, therefore, a party ought not to be denied a remedy over at once against the legatee by the recovery of an affirmative judgment against such legatee in the proceeding for an accounting by the executor.

The argument, from the convenience of the remedy, might well be addressed to the legislature. The only question for us is whether such a remedy has been given. The surrogate determines the validity of the payments made by the executor as between him and the estate, and after such determination the-amount of the estate, for purposes of distribution, is also determined. That amount is, of course, enhanced by disallowing any payment alleged to have been made by the executor on account of the estate, and where any part of such payments has been disallowed upon investigation by the surrogate, because such part was an over-payment, and where the legatee is a party to the accounting, it may, perhaps, be that the fact thus found should be conclusive in any further litigation between the executor and legatee where it would come in question.

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 course of the investigation which the surrogate may properly make, should be regarded as conclusively established by the decree which he makes in regard thereto. But it is plain that a power to compel a legatee to repay to the executor the amount which it is determined he owes such executor is totally different from a determination of the fact of such indebtedness as a mere incident to the stating of the account of the executor. This power to give judgment and award execution for the collection of the money paid to the legatee in excess of the legacy I do not find bestowed upon the surrogate, and it is of such a nature that without some language bestowing it upon this tribunal of peculiar and limited jurisdiction it would not otherwise possess it. The surrogate by virtue of his power to direct and control the conduct of executors could, as I think, direct the executor to enforce the collection of the debt from the legatee by a common law action. It would unquestionably be convenient for the surrogate to possess the jurisdiction as argued by the appellant, because in case of the insolvency of the executor, and hence his inability to put back into the funds of the estate the amount which he had overpaid the legatee, the judgment and the execution thereon might be at once entered and issued against the legatee by direction of the surrogate, without further litigation. But it does not seem to us that the jurisdiction has been given. The case of In re accounting of Morgan, 99 N. Y., 145 , is cited as an authority in favor of the existence of such jurisdiction. That case was decided upon the very broad and general nature of the jurisdiction granted the county court under the general assignment act of 1877.

The court by virtue of the provisions of that act in relation to the subject matter thereof was a court of general jurisdiction to do all and every act relating to the assigned estate, the assignees, assignors- and creditors, and after the filing or recording of the assignment the court was to exercise the power of a court of equity in reference to the trust and any matter involved therein. Upon such broad and sweeping language as this it was held, that upon a petition of a creditor entitled to the fund, and upon notice to the creditors who had received it, an order might be made by the court directing the receiving creditor to return to the assignee the amount received by him, so that the assignee might pay it over to the creditor entitled thereto. The point was regarded as one of some difficulty notwithstanding the generality of such language. The case of Hyland v. Baxter, 98 N. Y., 610 , is not in point. There the administrator had made certain advances for the support of the infants who were next^of kin of the intestate,

and upon his accounting it was held that the surrogate had power to determine upon equitable principles a claim for such advances made by the administrator, and that an allowance was proper where the expenditure would have been authorized by the court had application been made in advance. The surrogate could do on final accounting what he might have done before if application had been made, viz.: authorize the expenditure of a certain sum from the estate for the support and maintenance of the infants. This power it would seem necessarily followed from the jurisdiction of the surrogate over the accounting of the administrator, for he must on such accounting determine the question whether those expenditures were properly made, and hence whether the administrator was entitled to credit for them.

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 subject 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 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 such a movement change its essential character of a separate judgment liable to be set aside on motion, ,as was done in this case.

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

All concur.