
    (69 Hun, 484.)
    In re HODGMAN’S ESTATE.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    1 Wills—Specific Legacy—What Constitutes.
    A testator left his widow, who was made an executrix of the will, the sum of $50,000, “which may be invested in bank stock * * * and 'in bonds.” Held, that the legacy was not specific, and hence she was not entitled to dividends on the stock or bonds from the testator’s death to the time of the payment of the legacy.
    2. Executors and Administrators—Accounting—Interest on Legacy.
    The executrix will not be allowed credit, in an accounting, for interest on such legacy, where a receipt given by her on payment of the legacy shows that she received the $50,000 in full payment of the legacy, since such paper is an admission that she was only entitled to the amount of the legacy.
    3. Wills—Construction—Interest on Legacy.
    The will provided that the legacy, together with a devise of all of the property, real and personal, occupied as a home, and used in connection therewith, should be in full satisfaction of her dower rights in the estate. It further provided for the payment of the legacy as soon after payment of testator’s debts and general expenses as convenient to the executors. BclcS that the legacy was not payable until the widow elected to take it, and until such election the legacy could not draw interest.
    4. Executors and Administrators—Executors’ Pees.
    Nor should the widow be allowed fees as executrix where it appears that some 15 years before the accounting the executors and executrix attempted to settle their accounts themselves, and in pursuance to such arrangement she gave a receipt for her fees as executrix.
    5. Same—Parties—Decree.
    An executrix who makes the residuary legatees parties to an accounting has no interest in the decree, as far as it settles or affects the rights of such legatees, and cannot complain of the rulings of the surrogate in regard thereto.
    6. Same—Attorneys’ Pees.
    The executrix should be allowed, in an accounting, the amount of her attorneys' fees in such proceedings. ■
    Appeal from surrogate’s court, Washington county.
    Proceedings for the settlement of the accounts of the executors and executrix of Frederick D. Hodgman, deceased. From a decree of the surrogate judicially settling such accounts, except so much as settles the accounts of the executors of James Cheeseman, deceased, executor of Frederick D. Hodgman, deceased, Mary E. Hodgman, (now Mary E. Yates,) widow and executrix of Frederick D. Hodgman, deceased, appeals. Modified.
    For former report, see 10 N. Y. Supp. 491.
    Frederick D. Hodgman, the testator, died December 7, 1873, and letters testamentary under his will were issued to Mary E. Hodgman, his widow, (now Mary E. Yates,) the appellant; Alfred O. Hodgman, his nephew; and Philander O. Hitchcock and James Cheeseman. James Cheeseman died, and letters testamentary under his will were thereafter issued to James H. Cheeseman and Olive Cheeseman. Philander C. Hitchcock died, and letters testamentary under his will were issued to Asahel R Wing. These proceedings were commenced by the presentation of the petition of Alfred C. Hodgman, as one of the residuary legatees of the testator, to compel the surviving executrix and the executors of the two deceased executors to account. On' the return day of the citation issued upon that petition, Mary E. Yates, the surviving executrix, filed a petition to compel Alfred C. Hodgman to account as executor of the decedent. Subsequently the executrix filed a supplemental petition for the judicial settlement of the accounts of all the parties, and, upon that petition, citations were issued- to the residuary legatees under the will of testator, and all persons interested in the estate, and due proof of the service of these citations was thereafter filed. Thereafter the respondent Asahel R Wing, as executor of the last will and testament of Philander G. Hitchcock, deceased, filed objections to the petitions, and, subsequently, answers thereto; and upon the issues thus framed hearings were had, and an order made by the surrogate requiring the representative parties to account.' ErOm this order the respondent appealed to the general term, where the order of the surrogate was affirmed, whereupon the respondent filed his account, and the surviving executrix filed contesting allegations to that account. Other accounts and contesting allegations thereto were also filed. Upon all these issues so framed, subsequent proceedings were had, as a consolidated matter. In the account filed by the appellant was a claim made by her, as widow and legatee, to dividends upon certain stock transferred to her as legatee, under the assertion that the legacy was a specific legacy, and for interest. Upon the argument before the surrogate the appellant claimed that, if she was not entitled to the dividends upon the stock received by her, she was entitled to interest upon the legacy bequeathed .to her, from the death of testator, and she requested the surrogate to so find. She had given her receipt, which was produced by the respondent on the accounting, in the following form: “Received from the executors of P. D. Hodgman, deceased, $50,000, the amount of the legacy left me by the will of said Hodgman. Also, received from the same $353, my fee as executrix of said estate. Mrs. Mary E. Hodgman.”
    The provisions of the will, material to the present case, are as follows: “Second. I give and devise to my wife, Mary E. Hodgman, all the property, real and personal, occupied by me as my home, and used in connection therewith, situated and being in the village of Port Edward aforesaid, to be hers forever. I also give to my said wife the sum of fifty thousand dollars, which may be invested in bank stock, Port Edward and Wyoming, Iowa, and in bonds, and which said devise and legacy given to my said wife as aforesaid, I hereby declare, are intended to be and are so given to her in full satisfaction and recompense of and for her dower and thirds which she may or can in any wise claim or demand out of my estate. * * * I first desire my debts and funeral expenses paid. Then I desire the legacies to my wife paid, as soon after my death as convenient to my executors. Then the other legacies to be paid, when the estate is ready for settlement. And, should there not be a sufficient sum to pay all legacies in full, then and in that case they are to be paid equally, according to the respective amounts.”
    Argued before M-AYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Charles S. Foote, for appellants.
    Edgar Hull and Young & Kellogg, (Charles H. Sturges, of counsel,) for respondents.
   PER CURIAM.

It does not require an argument or citation of authorities to show that the legacy of $50,000 bequeathed to the appellant in the will of Frederick D. Hodgman, deceased, was not specific, and hence that she was not entitled to the dividends which accrued on the bank stock or bonds mentioned in the will.

Nor do we think appellant entitled to be allowed on the accounting for interest on said legacy. (1) The receipt shows that she received the $50,000 in full. This paper is an admission that said sum, without interest, was what she was entitled to. It shows that she and her copartners settled on that amount as due her. After having so voluntarily received $50,000 as “the amount of the legacy left me by "the will of said Hodgman,” she cannot recover interest. (2) On the evidence and facts of the case the surrogate was authorized to find that the legacy of $50,000 to appellant, being given in lieu of dower and thirds, was paid to her as soon as she elected to receive it. Until such election it would not draw interest.

We are also of the opinion that the surrogate did not err in not allowing the appellant fees other than had already been paid her. Her receipt was as follows: “Also, received from the same $353, my fee as executrix of said estate.” The parties, as the surrogate finds, seem to have intended to settle their accounts as executors between themselves, and, pursuant to the arrangement, appellant gave the receipt for $353, her fee as executrix. This voluntary settlement of the amount of appellant’s fees, made about 15 years before the accounting, and during the lifetime of Hitchcock, we think should not be disturbed. The parties having acted upon it, and distributed the estate, the surrogate was right in refusing to reopen the matter.

The two lapsed legacies clearly went to the residuary legatees. Riker v. Cornwell, 113 N. Y. 115, 20 N. E. Rep. 602; In re Crossman, 113 N. Y. 509, 510, 21 N. E. Rep. 180; In re Estate of Bonnet, 113 N. Y. 524, 21 N. E. Rep. 139. Therefore the appellant was not entitled to any interest therein as widow, and was not injured personally by the direction in the decree in reference thereto.

We conclude that the surrogate, in his decree, has not erred in any way affecting the interests of appellant. If any error has been committed in the conclusions and rulings of the surrogate, other than above considered, they are such only as affect the residuary legatees under the will in question, who were parties to the proceedings, with the right of appeal, but who have not taken any exceptions to the rulings of the surrogate, or any appeal from his decree. We think the executrix and appellant, having brought the residuary legatees before the surrogate, and made them parties to the accounting, on the entry of the decree of the surrogate, has no interest in the decree, as far as it settles, determines, or affects the rights of the legatees who were parties to the proceeding, and who might except or appeal. If they made no complaint of the rulings of the surrogate, or of his decree, it is not for the executrix to do so. Bates v. Ryberg, 40 Cal. 463; In re Wright’s Estate, 49 Cal. 550; Reid v. Venderheyden, 5 Cow. 719; Salmon v. Pierson, 8 Md. 297; Stewart v. Codd, 58 Md. 86; Hyatt v. Dusenbury, 106 N. Y. 663, 12 N. E. Rep. 711; Bryant v. Thompson, 128 N. Y. 426, 28 N. E. Rep. 522. The appellant, on the accounting before the surrogate, did not represent the legatees. After she had brought them into court their interests and hers conflicted, as in case of a plaintiff and defendants. ISTor does she represent them on the appeal. We do not, therefore, feel called upon to examine and discuss the very many other rulings of the surrogate to which exceptions are taken by the appellant, because such rulings only affect the residuary legatees, and are therefore of no concern to the appellant, and the residuary legatees make no objection. The executrix is not aggrieved by such ruling. Civil Code, § 2528.

The decree provides that $2,932.26, in the hands of Alfred C. Hodgman, and $500, in the hands of appellant, be paid to respondent Wing. As neither Alfred C. Hodgman nor either of the residuary legatees complain of this direction as to the said $2,932.26, appellant has no cause to complain. The $500 in the hands of appellant, being the lapsed legacy, which, as we have seen, should go to the residuary legatees, and which appellant holds for them as trustee, said legatees not objecting to the direction of the surrogate requiring said sum to be paid to respondent, appellant has no cause to complain of such order and disposition of the fund. Under all the circumstances of the case, we have doubts as to the correctness of the conclusion of the surrogate that there was a balance due Wing, as executor, from the estate of Frederick D. Hodgman, deceased, of the sum of $13,456.40, and, were there any appeal in behalf of the legatees, we would consider this matter; but as the only persons affected by the error of the surrogate, if any was committed, acquiesce in his conclusions, we are not called upon to discuss this question.

We are of opinion that the surrogate should have allowed the appellant the amount paid by her to her attorney for services of the accounting. The bill seems reasonable. She was compelled to employ counsel, and she has in her hands, as we have seen, $500 of the assets of the estate. The decree should be modified by allowing appellant the amount paid her attorney, $350, and providing that the balance in her hands, $150, be paid to the respondent, instead of $500, and, as so modified, affirmed, without costs to either party.  