
    In re PEASLEE.
    (Supreme Court, General Term, First Department.
    November 16, 1894.)
    L Wills—Right to Legacy.
    Where an order denying a motion by a legatee to revoke probate of a will has been affirmed by the general term on the ground that by accepting part of the legacy she was estopped to contest the will, the-legatee is not, during the time within which she might appeal from such judgment of affirmance, precluded from asking that the executors be-compelled to pay the balance of her legacy.
    2. Counterclaims—Demand not Due.
    The father of one F. bequeathed money in trust for her, the principal, on her death without issue, to go to M. The trust fund was paid to F., who lost it. M. died in the lifetime of F., leaving her a legacy. Held, that the executors of M. could not set off against the legacy given by M. to F. the claim of M. to the trust fund, as it was contingent so long as F. lived.
    8. Same—Jurisdiction op Surrogate’s Court.
    The surrogate’s court has no jurisdiction to enforce contingent claims-of executors by means of equitable set-off.
    Appeal from surrogate’s court, New York county.
    Application by Frances M. Peaslee for payment of a legacy bequeathed to her under the will of Martha K. Peaslee, deceased. The surrogate ordered payment of the legacy, and Hiram Hitchcock and Edward H. Peaslee, as executors of the will of said Martha K. Peaslee, appeal. Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN, J.
    T. H. McG-rath, for appellant.
    W. H. Arnoux, for respondent.
   VAN BRUNT, P. J.

It appeared that one Peaslee died in 1878, leaving a will, which contained the following clause:

“I give to my daughter, Fannie M. Peaslee, $20,000 in money, or its equivalent in stocks, as my executor may decide, and $20,000 in trust, the same to revert at her death, if without issue, equally to my wife and son.”

This $20,000 in trust was paid over to the said Fannie M. Peaslee, who lost the same. The persons entitled to this fund in the event of Fannie M. Peaslee dying without issue are Edward H. Peaslee to the extent of $10,000, and Edward H. Peaslee and Hiram Hitchcock, as executors of Martha K. Peaslee, to the extent of $10,000. By the will of Martha K. Peaslee, a legacy of $30,000 was bequeathed to Fannie M. Peaslee, of which sum $7,000 has been paid, and the order appealed from directed the payment forthwith of the balance of $23,000. After the will of Mrs. Peaslee had been ■admitted to probate, Fannie M. Peaslee made a motion for the revocation of the probate. This motion was heard by the surrogate, and denied. Thereupon she appealed to the general term of this court, and the decree was affirmed on the ground that she, having accepted the payment of $7,000 on account of the legacy bequeathed -to her, had estopped herself from contesting the validity of the will. 25 N. Y. Supp. 940. It is now urged that Fannie M. Peas-lee, having accepted from the executors $7,000 on account of the legacy bequeathed to her by the will of Martha K. Peaslee, cannot now assert that the balance shall be paid to her pending the expiration of the time within which the Code of Civil Procedure prescribes that she shall have the right to appeal. The force of this objection we are unable to see. The time for the payment of the legacy has arrived, and she is entitled to its payment. What effect such payment may have upon other proceedings is a question with which we have nothing to do upon this application.

It is further urged that as to $20,000 of the sum of $23,000 which ■the surrogate had directed the executors to pay they have a valid right of set-off. We are unaware of any authority on the part of executors to offset contingent claims against absolute legacies. These executors are entitled to nothing unless Fannie M. Peaslee dies without issue. And this contingent claim they seek to offset ■against her absolute right to her legacy given by the will of which they are the executors. It seems to us that the surrogate’s court has no equitable powers which would enable it to enforce the contingent claims of the executors by means of an equitable set-off. The position of the appellants seems to be based upon the claim of an existing right of possession of this money which clearly does not ■exist. Therefore, under the rule laid down in Fera v. Wickham, 135 N. Y. 223, 31 N. E. 1028, the right of set-off did not exist, even if the surrogate had the power to entertain such an application. The order should be affirmed, with $10 costs and disbursements.  