
    Maggie Sexton, Respondent, v. Frank Sexton and Others, Appellants.
    
      Surrogate's Court—power of', in respect to a claim madeby an executor—its decision is a bar to a subsequent action in the Supreme Court to enforce the claim.
    
    "Where the administratrix of a decedent, .who at the time of her death had certain money on deposit in a savings bank, collects such money from the bank as administratrix and returns it as part of the decedent’s estate, and on her accounting before the surrogate claims the money individually, first, on the ground that it was her savings which had been deposited by .her with the decedent for safekeeping, and, second, on the ground that the other heirs at law had given her their interest therein, and the surrogate decides against the claim, the proceeding in the Surrogate’s Court is a bar to á subsequent action in the Supreme Court to secure the same relief.
    Appeal by the defendants, Frank Sexton and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of October, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Richard A. Rendich, for the appellants.
    
      F. J. Moissen and George Gru, for the respondent.
   Sewell, J.:

The defendants appeal from a judgment of the Special Term which determines that moneys at. the time of the decease of Julia Sexton, standing in her name and to her credit, were the property of the plaintiff. The action is brought by a daughter of Julia Sexton, deceased, against the other heirs at law. The plaintiff complains that she is administratrix of the estate of Julia Sexton, "who, at her decease, had certain moneys on deposit in a savings-bank,, originally deposited by the plaintiff with deceased for safekeeping;; that doubts have arisen as to the ownership, and that a claim has-been made thereto by the defendants, her brothers and sisters, and plaintiff demands a judgment or decree of the court adjudging the-moneys to be her property individually.' The ■ complaint was verified on January 15, 1900. At the opening -of the trial the defendants moved to dismiss on the ground that the court did not have-jurisdiction ; that jurisdiction was vested in the. Surrogate’s Court, and that the Surrogate’s Court had first obtained-jurisdiction. The-court reserved its decision; thereupon plaintiff gave evidence tending to establish her earning of certain moneys, their deposit with her mother, and declarations of the mother as to plaintiff’s ownership thereof. At the close of plaintiff’s case the motion for dismissal was renewed and the decision was again reserved. Thereupon defendant read in evidence the account filed by the plaintiff as administratrix of Julia Sexton, the objections to the .account, the-order of reference, the report of the referee, the order confirming-' the report dated December 23, 1899, the exceptions of the adminis-^ tratrix to the report of the referee and her findings submitted for the referee’s signature. At the close of the evidence the defendant: renewed the motion to dismiss upon the grounds stated and upon the additional grounds that the matter had been adjudicated by the-Surrogate’s Court and that no evidence of fraud had been shown. The court directed that all of the grounds of dismissal be stated upon the brief, and subsequently gave the judgmént from which, this appeal is taken.

The learned Special Term ruled that if the claim were one against the estate as for a debt owing to the plaintiff by the intestate in her lifetime, the Surrogate’s Court had jurisdiction, and that the-proceedings on the accounting would have been a bar to this action,, but that the claim was not of this character; that the money belonged all of the time to the plaintiff, and that her mother was: but the medium of deposit, which deposit plaintiff was entitled at: any time, either before or after the death of her mother, to demand- and to receive from the bank. It further ruled that as the mother never claimed the money it could not be said that the plaintiff has now or ever had a claim or debt against the estate. It further ruled that although the plaintiff drew out the money from the bank as administratrix, and treated it for a while as part of the assets of her mother’s estate, “ such ill-advised action ” did not deprive her of her right to claim absolute ownership from the very moment she placed the money in her mother’s hands, and that, therefore, the Surrogate’s Court had no power to decide the ownership of the money, and the plaintiff could challenge its jurisdiction at any time.

The plaintiff, as administratrix, rendered her account in the Surrogate’s Court. Schedule A contains the “ amount received by administratrix from bank, including interest after grant of letters, April 19, 1895, $1,535,” which is stated to be the “property of said estate.” Schedule C contains a statement showing .various payments for personal and other expenses. Schedule E reads, “ The heirs at law of dec’d’t having made and signified their love and affection for administratrix in giving her their entire estate as a gift, I have applied the same for the purposes mentioned in Schedule C.” In Schedule C the' administratrix states that her former attorney told her that her brothers and sisters had “ all signed off to me, and that the whole money was mine, and that I could do with it as I pleased,” and that “ the rights of my brothers and sisters having become vested in me by their having given me the same as appears herein, and nW, after the lapse of three years, for some unknown reason to me, want to repudiate their gift tome, never having from the time of doing so up to the time of asking for this accounting pretended or claimed any interest, but on the' contrary they always asserting that the estate belonged to me.” She then states that she made a claim of $80 for nursing the deceased, and that she does “ submit to the court the disposition of all matters mentioned in this accounting,” and closes with the statement: “ Administratrix was a school teacher for a long time and placed all her earnings in the hands of decedent for safekeeping, and these earnings constitute the estate herein, all of which belongs to administratrix.” The next of kin filed objections which, inter alia, denied the allegations contained in Schedule D, evidently meaning “ Gr,” inasmuch as they are described in specified terms. Thereupon the learned surrogate ordtired that the account be sent to a referee to examine the same and-to determine all questions arising upon the settlement which the surrogate has power to determine. The referee heard all parties and reported that the money in the bank was the property of the deceased; that no gift was made to the administratrix by the contestants; that such money was the estate of the deceased and should be so administered. The administratrix excepted, but the report was confirmed.

I think that the error of the learned Special Term consisted in wholly disregarding the force of the proceeding in the Surrogate’s Court. It appears that the plaintiff as administratrix collected this money, returned it as the estate of the testatrix, and then sought to establish (1) a .claim against it as' her personal property; (2) that her father, brothers and sisters made gift of their interest therein to her. She did not appear in the Surrogate’s Court as a claimant to equitable relief, but as administratrix, claiming the right to retain as her bwn the money she; had collected and returned as an asset of her mother’s estate. The same question waá presented, in Boughton v. Fli/tit (74 N. Y. 476), where the court said: “ On this question of jurisdiction the appellant makes the further point that the claim of the executrix for $800 held on deposit for her by the testator was .one cognizable only in equity, and that, conceding that a surrogate has jurisdiction to decide upon disputed claims of an executrix, such jurisdiction, extends only to such claims as are enforcible in courts of law, and not to such as require the interposition of a court of equity, a surrogate having none of the powers of a court of chancery. If the claim of the executrix were to equitable relief of any kind there would' be force in this objection;; but where she claims only the right to retain out of the assets of the estate a sum of money, as belonging or due to her, it can make little difference whether her right to it depends upon legal or equitable principles.”

Express power is conferred.upon the surrogate to determine upon the judicial settlement of the account of an executor or administrator a contest between the accounting party and any of the other parties respecting property alleged to belong to the estate, but to which the accounting party lays claim either individually or as the representative of the estate. (Code Civ. Proe.. § 2731.) This section substantially embodies the rule under the Revised Statutes. (2 E. S. 88, § 33 ; Id. 95, § 71; Id. 220, § 1, subds. 3-6.) Under the general powers granted to the surrogate in these sections, to direct and control the conduct and settle the account of executors and administrators, to decree distribution and to settle and determine all questions concerning any claim or distributive share, it was held in many cases that a surrogate had power to hear and determine all claims against the estate in which the executor or administrator was interested, whether legal or equitable, and that the statute made it his duty to settle and determine all questions concerning any claim or distributive share. (Hyland v. Baxter, 98 N. Y. 610; Riggs v. Cragg, 89 id. 479; Shakespeare v. Markham, 72 id. 400; Kyle v. Kyle, 67 id. 400; Jumel v. Jumel, 7 Paige, 591.)

In the case first cited the court said: “ The fact that the question is an equitable one, and depends upon equitable principles, is not a ground of objection to the jurisdiction. The Surrogate’s Court is a court of limited powers and jurisdiction, but it has jurisdiction to determine questions either legal or equitable arising- in the course of proceedings in the execution of powers expressly conferred, and which must be decided therein.”

The Surrogate’s Court is the proper tribunal to pass upon and try the validity of the respondent’s claim. It first obtained jurisdiction' of all the parties interested in this particular estate, and, although the Supreme Court has concurrent jurisdiction in the premises (Sanders v. Soutter, 126 N. Y. 193), the pending of the proceeding for an accounting before the surrogate is a valid objection and must be held to be a bar to this action.

The judgment should be reversed, with costs.

Goodrich, P. J., Woodward and Hirschberg, JJ., concurred; Jerks, J., not sitting.

Judgment reversed and new trial granted, costs to abide the event.  