
    In the Matter of the Estate of Phebe H. Robinson, Deceased. D. Remsen Robinson and Edward E. Perkins, as Executors, etc., of Phebe H. Robinson, Deceased, Appellants; Mary Reed Albee and Others, Respondents.
    Second Department,
    April 30, 1913.
    Decedent’s estate—proceeding to compel testamentary trustee to pay over income — answer denying that there is income available — proceeding dismissed — injunction of Supreme Court restraining accounting construed.
    Sections 2804 and 2805 of the Code of Civil Procedure, relating to. a proceeding in the Surrogate’s Court to compel a testamentary trustee to pay over moneys to beneficiaries entitled thereto, do not contemplate a proceeding in the nature of an accounting, and where the answer of the trustee indicates a doubt as to the validity of the claim the surrogate cannot proceed to take proofs and make a determination, but should dismiss the petition without prejudice to an action for an accounting, as required by the statute.
    The same rule holds where such proceeding is brought against an executor or administrator under subdivision 2 of section 2722 of the Code of Civil Procedure.
    Where the beneficiary of a trust fund has brought action in the Supreme Court to remove the trustee and for an accounting, an injunction issued in said action restraining an accounting by the trustee in the Surrogate’s Court pendente lite, but providing that the trustee shall not be prevented from disbursing the income from the trust estate, only permits the disbursement of income as to which there is no question, and where the answer of the trustee in the Surrogate’s Court shows that the income is less than the charges against it, the surrogate cannot make a determination that there is income which should be distributed.
    
      It seems, that but for the injunction aforesaid the surrogate could have ordered an intermediate accounting under section 2803 of the Code of Civil Procedure.
    
      Appeal by D. Retasen Robinson and Edward E. Perkins, as executors, etc., of Pliebe H. Robinson, deceased, from a decree of the Surrogate’s Court of the' county of Dutchess, entered in said Surrogate’s Court on the 24th day of September, 1912. ■
    
      George Worrall, for the appellants.
    
      Payson Merrill [Alfred H. Holbrook with him on the brief], for the respondents.
   Jenks, P. J.:

This appeal is from a decree of a Surrogate’s Court that directs a distribution of income received and to be received on the principal of the estate of Phebe H. Robinson-, deceased. After a devise of certain realty, the testator gave her estate to her executors in trust during their lives and that of the survivor to apply the rents, issues and profits to the use of her two children and a grandchild respectively, to be paid quarterly, The letters testamentary were issued on October 11, 1910. On October 10, 1911, the executors filed an account in the office of the surrogate, with petition for judicial settlement. Two of the beneficiaries appeared and asked to examine the executors in order to determine the question of objections. One of the executors was examined and several hearings were had, but before any objections were filed and before any decree was •made two of the said beneficiaries brought an action in the Supreme Court against the executors, wherein they demanded judgment inter alia that the said defendants be removed as trustees, that they turn over all moneys in their hands as' executors and trustees to a receiver to be appointed, that they account as executors or trustees, and that said defendants be enjoined pendente lite from proceeding with the accounting in the said Surrogate’s Court. The plaintiffs in the action in the Supreme Court obtained an injunction pendente lite which restrained the defendants from taking further proceedings in the accounting then pending in the Surrogate’s Court until the final determination of the action. . The surrogate upon application of the said beneficiaries had theretofore made a decree directing distribution of income shown in the account, which was obeyed. 1

This proceeding was begun by petition of one of the said beneficiaries to the Surrogate’s Court on the showing that the defendants, subsequent to any distribution of income, had collected further moneys payable to the beneficiaries, which were in their hands, praying for “ a decree” for the prompt payment of her share of the income which had accrued and asking for a citation to the defendants to show cause why such decree should not be made. The appellants were thereupon cited, and filed an answer wherein they called attention to the said Supreme Court action, the injunction order therein, and pleaded that after deducting from the income received by them subsequent to the last payments to the beneficiaries all expenses and taxes properly chargeable against the same there would not remain in the hands of the executors any income for distribution to the legatees.” To sustain this plea they set forth certain facts. Thereafter further proceedings were had in the Surrogate’s Court. The petitioner at the. outset called one of the executors as a witness, whereupon his counsel objected to his examination in that proceeding as to any amount received and disbursed by the executors, on the ground that an action had been commenced in the Supreme Court for an accounting wherein these executors had been enjoined from accounting in the Surrogate’s Court. This objection was overruled under exception. The account filed on October 10, 1911, was offered in evidence under objection under the same grounds and exception, was then read in evidence and the executor was examined. The petitioner at the close of the direct examination rested, and the executors offered certain proof to sustain their contention. The surrogate made certain findings of fact and conclusions of law, which in effect disposed of the contention of the executors that no income was then on hand payable to the beneficiaries, and determined that a certain amount, to be ascertained by prescribed deductions, should as accrued income in their hands be paid to the beneficiaries. Various findings and a conclusion proposed by the executors were passed upon by the surrogate. A decree was entered in accord with the findings in favor of the petitioner, and from that decree this appeal was taken. The surrogate found, at the request of the executors, that the said injunction, in the Supreme Court enjoins an accounting in the Surrogate’s Court, that it was still in force, and so long, as it was in force the petitioner was estopped from compelling the executors to account in the said Surrogate’s Court.

The contention of the respondent rests upon the. fact that the injunction order in the Supreme Court provides as follows: “ This injunction does not prevent the said executors, and trustees from receiving and disbursing the income from the estate of the said Phebe H. Robinson as provided in said will.” The learned counsel for the respondent contends that this proceeding is properly brought, either under, subdivision 2 of section 2722, or under sections 2804 and 2805 of the Code of Civil Procedure. I shall consider first the said sections 2804 and 2805. (See Matter of Hunt, 110 App. Div. 533.) Section 2804 prescribes the presentation of a petition praying for a decree and for a citation to the testamentary trustee to show cause why a decree should not be made. Such citation must follow in course. Section 2805 prescribes upon the return of the citation if the testamentary trustee files a written answer, duly verified, Setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal and denying its validity or legality absolutely, or upon his information and belief, a decree must be made dismissing the petition without prejudice to an action on behalf of the petitioner for an accounting, otherwise the surrogate must hear the allegations and proofs of the parties and must make such a decree in the premises as justice requires. I - think it clear beyond discussion that these provisions do not contemplate a proceeding in the nature of an accounting, else there would be no provision in section 2805 as to an accounting. Moreover, section 2803' provides for an intermediate account at any time, so that it is not likely that the provisions of the section immediately following should contain a repetition of remedies. I think that the answer filed in this case shows sufficient facts within the requirements of section 2805 to show that the validity and legality of the claim is doubtful. The contention in brief is that the appellants had paid all income up to and including April 10, 1912; that from April 10,1912, until July 10, 1912, they had collected $7,553.10; that up to that time, they had paid out the following expenses which they contend were a proper charge against the income: Taxes, $4,062; upkeep of certain realty, $1,427.85; and that in making the. payments on account heretofore no deductions were made for certain expenses or for the amount due for commissions. In Hurlburt v. Durant (88 N. Y. 121), in construction of a statute of similar terms, the court said: “Do the affirmative facts stated make the petitioner’s claim of doubtful validity ? First. The defendant was entitled at some time and from some source to his commissions, upon paying to the various legatees the sums provided for them. The point now in controversy is, was there a bona fide claim on his part that they should be paid from ■ the legacies, or was it so entirely clear that they should come out of the general estate as to make his claim a mere pretense. ” (See, too, Matter of Stevens, 20 Misc. Rep. 157.) I think that, if the answer indicates doubt as .to validity and legality of the claim, the surrogate cannot proceed as if on an accounting to resolve the doubts by hearing the allegations and by taking proof. I think that the limitation in the injunction order (supra) but permits the disbursements of income as to which there can be no proper question, otherwise it would nullify the very order itself.

Inasmuch as the petition asks for general relief it would have been in the power of the surrogate to have ordered an immediate accounting under section 2803 of the Code of Civil Procedure (Matter of Odell, 52 Hun, 88, per Bartlett, J.), but for the fact that the petitioner has enjoined that accounting by her affirmative action in the Supreme Court. I’ think that my discussion of sections 2804 and 2805, is germane to the provisions of section 2722 invoked by the petitioner. (See Jessup Surr. Pr. [4th ed.] 1052.)

The decree must be reversed, with costs to the appellants payable out of the estate,

Hirschberg, Burr and Rich, JJ., concurred.

Decree of the Surrogate’s Court of Dutchess county reversed, with costs to the appellants payable out of the estate.  