
    In the Matter of the Claim of William Lang, Ex’r, App’lt, v. The Estate of Eliza Stringer, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    Executoks — Accounting—Restitution.
    On settlement of accounts the executor showed that he had delivered bank books to the co-executor, who was also the residuary legatee, and filed a claim against the estate, which was disallowed, but this decision was reversed on appeal and remitted to the surrogate, who thereupon allowed the same. Held, that the delivery of property under the first decree did not deprive the surrogate of power to compel restitution to the claimant executor.
    Appeal from part of decree of surrogate of Westchester county, adjudging “ that this court had no power to compel said Cecelia A. Howell to pay over to said William Lang said deficiency of $54, said commission of $93.75, said costs, $421.50, and said claim of $1,445.72, or either of them. That said William Lang be paid said amounts out of any assets remaining in his hands as executor, or which may hereafter be received by him as executor.”
    
      Arthur T. Hoffman, for app’lt; H. T. Dykman, for resp’t.
   Barnard, P. J.

William Lang and Cecelia A. Howell were, on the 20th of July, 1888, duly qualified as executors of Eliza Stringer, deceased. Both continued to act as such until Septemher, 1889. Lang was a creditor of the estate and Cecelia A. Howell was the general residuary legatee. In September, 1889, Lang filed his petition for a final settlement. All parties were cited. On the return day, September 23, 1889, Lang presented his bill. It was objected to and rejected. A new trial was granted, and upon the new trial the claim was allowed; but the court held that the delivery of the property under the first decree-deprived the surrogate of all power to compel restitution to the claimant, Lang. This is a hard rule. Lang had enough property to pay his claim until he was compelled to surrender it under an erroneous decree. The legatee was also executor and could not finally take, as legatee, untd the judgment on the distribution and final settlement was sustained. When the case went back to-the surrogate it stood in law as if the claim had been allowed in the first instance. There is no evidence in the case that Lang paid his co-executor or legatee. She had as much right to the possession of the assets as her co-executor, and neither she or her co-executor could give away to a legatee the assets until the debts-were paid. Lang’s debt was from the estate, and not from his co-executor, even if she was a legatee.

The judgment, so far as appealed from, should be reversed, with costs out of estate, and Lang be decreed entitled thereto out of the property on hand when he presented his claim.

Dykman and Pratt, JJ., concur.  