
    FANNY KYLE and another, Appellants, v. GEORGE A. KYLE, Executor, etc., Respondent.
    
      Dower—payment of its mine by executor—Contested claim by executor—power of surrogate to Tiea/r,
    
    Dower is recoverable by action against the person in possession of the real estate of which the deceased husband died seized. Mesne profits are not recoverable until the widow recovers judgment for her dower.
    An action will not lie for its value in money unless an express contract be proved. The statute (3 R. S. [5th ed.], 175, § 37), imposes no limitations on the power of the surrogate to hear and determine claims by executors against the estates of their testators. It matters not whether such claims are contested or not.
    Appeal from a decree of the surrogate of Cayuga county, entered May 21, 1873.
    
      Fanny Kyle and Charles Kyle were respectively the widow and only child of the late David Kyle, deceased, who died at Aurelius, in the county of Cayuga, about the 17th day of March, 1871, leaving a last will and testament, by which his brother, George Kyle, and William Mersereau, the father of Fanny Kyle, were appointed executors; the same was duly proved, and the said executors duly qualified for the performance of the trust thereby conferred, and entered upon the same on or about the 10th day of April, 1871, and took possession of the personal property of the deceased, and disposed of the same.
    On the 23d day of April, 1873, upon due citation for final accounting, served some time previously, the said executor, George Kyle, presented his account as executor, showing, among other things, the payment by him to his mother, an aged woman, by the name of Mary Kyle, the sum of $1,300, as and for supposed claims of her dower-right in the farm owned by said deceased at his death. The widow’s dower never was admeasured.
    The surrogate allowed the same as a payment, against the objections taken thereto. He also allowed items of fifty dollars and twenty dollars, alleged to have been paid by said George Kyle, executor, to his mother; also the sum of seventy dollars. The surrogate also charged to the said William Mersereau, executor, the sum of $224.08, as interest upon property which said executor had bid off at the sale for the widow (who claimed under the will), at her request and direction.
    He heard, tried and determined a contested claim of the said George Kyle, against his deceased brother’s estate, of $1,500, under objection, and adjudged that the estate was indebted, upon the proofs, to the said George Kyle, for the said $1,500, and ordered that it be paid to him.
    
      James R. Cox, for the appellants.
    
      M A. Woodm, for the respondent.
   Mtjllin, P. J.:

The defendant, as executor of the last will of David Kyle, was not authorized to pay his mother anything from the assets in his hands, as or for her dower on the farm on which, the testator lived at the time of his death. Dower is the interest that the widow has in the real estate of which her husband died seized, and is recoverable by action against the person in possession. Mesne profits are not recoverable until the widow recovers judgment for her dower. An action will not lie for its value in money, unless an express contract to pay for it is proved. Until assignment, the «widow has nothing but a mere right of action; so that she cannot maintain an action for use or occupation. Such an action can only be maintained by one having an estate in the land, and as between whom and the occupant the relation of landlord and tenant exists,

It is quite probable, that, had the testator promised to pay the widow the value of the use of her dower interest in the farm in which such right existed, that an action on the promise might be sustained, although dower had not been assigned to her. Ro such promise is pretended, much less proved. The surrogate erred in allowing the item of $1,300.

The claim of the executor to be paid, out of the assets, a demand of $1,500, alleged to be due him by the testator at the time of his death, has been allowed against the weight of evidence given on the hearing. The $1,500 are claimed by defendant to be due to him for one-half of the personal estate on the farm on which he and the testator lived at the time of the sale of the farm and personal property by defendant to the testator. It is conceded by the defendant that the land was paid for, but he insists that the personal was not paid for. The appellants insist that the testator purchased both real and personal for the sum of $6,000, and that no claim was made for the price of the personal, until after the death of the testator. The appellants’ counsel makes no objection in his points on the appeal, to the allowance by the surrogate of the personal claim of the defendant against the estate of the testator, provided he had jurisdiction to hear and decide it. By 3 Revised Statutes (5 th ed.),175, section 37, it is provided that no part of the property of the deceased shall be retained by an executor or administrator in satisfaction of his own debt, until it shall have been proved to, and allowed by, the „ surrogate. By the next section, it is provided that the proof of such debt may be made on the service and return of a citation for that purpose, directed to the proper persons, or on the final» account of such executor or administrator. The statute imposes no limitation on the power of the surrogate to hear and determine such claims. It matters not whether the claims of the executor are or are not disputed ; they must be proved to the satisfaction of the surrogate before he can allow them. The power of the surrogate to hear and determine claims of creditors against an executor, and disputed by him, has been uniformly denied. But his power to hear and determine claims made by the executor against the estate for debts due to him from the testator, has been quite as uniformly asserted.

The appellants’ counsel raises no question as to the allowance of the other claims by the surrogate, and they are not therefore considered by us.

The surrogate was right in refusing interest on the $1,500 claimed by the defendant. It .is not satisfactorily proved that the personal property was sold by defendant for a specific sum. It would seem that the amount was arrived at by defendant, by his estimate of the value of the property that the testator received with the farm.

The decision is reversed as to the $1,300 allowed the mother of the defendant for her dower, and affirmed as to the residue.

The proceedings are remitted to the surrogate with directions to settle the account of the executors by disallowing, instead of allowing, the item of $1,300 for money paid by defendant to his mother.

Ordered accordingly. 
      
       3 R. S. (5th ed.), 33, §§ 19, 30, 31.
     
      
       Yates v. Paddock, 10 Wend., 538.
     
      
      
         Colt v. Planer, 4 Abb. (N. S.), 140; Smith v. Stewart, 6 J. R., 46. .
     
      
       See cases collected in Abbott’s Digest, vol. 5, p. 373, § 799.
     
      
       Williams v. Purdy, 6 Paige, 166; Gardner v. Gardner, 7 id., 112; Jumel v. Jumel, id., 591; Robinson v. Raynor, 28 N. Y., 494; In the Matter of the Accounting of O. N. Cunningham, 1 Hun, 214.
     