
    Matter of the Estate of Harold E. Boericke, Deceased.
    (Surrogate’s Court, New York County,
    January, 1916.)
    Executors and administrators — duties of — who entitled to certain stock — decedents’ estates — actions — accounting.
    Where decedent, a stock broker, held stock purchased by him for account of petitioner as security for the payment of the balance of the purchase price and it is unpaid at the time of . decedent’s death, the title to the stock is in dece.dent.
    
      In ease the administratrix fails to perform the contract for the purchase and delivery of the stock in question, the petitioner has a cause of action against her on a claim against decedent’s estate enforcible in an appropriate tribunal or determinable upon the judicial settlement of the account of the administratrix, but the court cannot direct her to purchase and deliver to petitioner the securities claimed by him as the effect will be to create a preference over other creditors of the estate.
    Application to compel administratrix to deliver to petitioner certain shares of stock.
    Milton Dammann (David Michelsohn, of counsel), for petitioner.
    Max L. Arnstein, for administratrix.
   Fowler, S.

This is an application to compel the administratrix of decedent’s estate to deliver to the petitioner certain shares of stock. The petitioner alleges that the decedent, prior to his death, was engaged in business as a stock broker, and that he purchased for the petitioner 100 shares of Standard Motor Company stock, 100 shares of Kenneeott Copper Company stock and 200 shares of the capital stock of the International Mercantile Marine Company. The petitioner further alleges that he paid the decedent $2,400 on account of the purchase price of this stock;, that the decedent held the shares of stock as security for the payment of the balance of the purchase price; that the petitioner tendered to the administratrix of decedent’s estate such balance, and demanded delivery of the stocks, and that the administratrix has failed to make such delivery. The administratrix in her answer denies that the decedent purchased for the petitioner any stock of the International Mercantile Marine Company, but she' admits that the decedent purchased the other shares of stock mentioned in the petition, and that such shares of stock were purchased on margin. She further alleges that she has not in her possession, and did not have at the time of the commencement of this proceeding, any of the shares of stock mentioned in the petition as belonging to the petitioner. When the decedent purchased for the account of the petitioner the stocks mentioned in the petition, he did not deliver them to the petitioner, but held them as security for the payment of the balance of the purchase price. The petitioner, therefore, cannot identify the particular certificate or certificates of shares of stock which were received by the decedent when he made the purchase for the account of the petitioner. While the administratrix in her answer denies that she has in her possession the stocks mentioned in the petition, it appeared upon the hearing before me that she has a number of certificates of stock in the companies mentioned in the petition, but that these shares of stock are claimed by other customers of the decedent. In the absence of such allegations in the petition as would enable the court to identify the particular certificates of stock claimed by the petitioner, it cannot direct the administratrix to deliver any of the certificates in her possession. The shares of stock purchased by the decedent for the account of the petitioner were held by him as security for the payment of the balance of the purchase price, and the title to such shares remained in the decedent, the relation between the decedent and the petitioner being that of pledgee and pledgor. Content v. Banner, 184 N. Y. 121. At the time of decedent’s death the balance of the purchase price had not been paid by the petitioner; therefore, the title to the shares of stock was in the decedent at the time of his death. If the administratrix fails to perform the contract which the decedent entered into with petitioner for the purchase and delivery of the shares of stock mentioned in the petition, the petitioner has a cause of action against the administratrix or a claim against the estate which may be'enforced in the appropriate tribunal, or which may be determined upon the judicial settlement of the account of the administratrix. While it is true' that stock brokers may discharge their obligation by returning the number of shares, though not the identical certificates pledged with them (Carlisle v. Norris, 215 N. Y. 400), the court cannot direct the administratrix to purchase and deliver to the petitioner the securities claimed by him, as such direction might, in effect, give the petitioner a preference over the other creditors of decedent’s estate.

Application denied.  