
    In the Matter of the Judicial Settlement of the Accounts of Joseph Spears, as Executor of William C. Spears, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    1. Executors—Real estate.
    If an executor or administrator assumes possession of property which descends to the heirs of an intestate or passes under the will of a testator to the devisees, and collects the rents, the remedy of the persons entitled to such rents is by an action at law.
    2. Surrogate—Jurisdiction.
    The surrogate has no jurisdiction to determine controversies arising in regard to the real estate of a testator or intestate, to which he has no right of possession.
    
      3. Will—Construction.
    A will, which leaves to the executor the disposal of the testator’s property, does not create a trust, nor give to him any title to, or right of possession of, such real estate so as to entitle him to collect the rents thereof.
    Appeal from part of the decree of the surrogate.
    
      Sachett & Lang, for app’lt; /Samuel Keeler, for resp’ts.
   Brown, P. J.

This appeal is from a part of the decree of the surrogate of Westchester county, rendered in a proceeding for the final settlement of the accounts of the appellant as the executor of the last will and testament of William 0. Spears, deceased. The case states that the account of the appellant “purported to contain a full statement of all the rents and expenditures on the real estate belonging to said William 0. Spears from the time of his death down to June 1, 1894, which showed that the sum of •eight thousand and fifty-one 37-100 dollars was expended on said real estate for taxes, water rates, repairs, etc.” All parties interested objected to this part of the account, and the surrogate decided “ that no estate in the real property of the testator was vested by his will in the executor, and no trust in relation to the real estate was created by the will.” All items for rents and expenditures were therefore stricken from the account. Property that descends to heirs of an intestate or passes under the will of - a testator to devisee does not go to executors or administrators, and, if they assume possession of it, and collect the rents, the remedy of the persons entitled to it is by a proper action at law. A surrogate has no jurisdiction to determine controversies arising from such matters. His power to control the conduct of executors and administrators is limited to property of which they have the right of possession. Calyer v. Calyer, 4 Redf. Sur. 305; Shumway v. Cooper, 16 Barb. 556.

The will of the testator was as -follows :
“New York, Feb. 28th, 1891.
“I, William 0. Spears, being of sound mind, and being about to go to Florida, make this, my last will and testament. I hereby make my brother Joseph Spears my sole executor, and leave to his judgment, as he may see fit, the disposal of all my real and personal property, to be divided among my heirs as his judgment may deem best and most fitting to him, and to be sold or held as long as he may deem best for the interest of my heirs.
“William 0. Spears.” -

This instrument did not create a trust, and the executor took thereunder no title to the testator's real estate. Its legal effect was to grant to the executor.a power for the purpose of the division of the land among the heirs, who took the title subject to the execution of the power. 1 Rev1. St. p. 729, § 56; Cooke v. Platt, 98 N. Y. 35; Chamberlain v. Taylor, 105 N. Y. 185; 7 St. Rep. 517. The appellant had no authority, therefore, as executor, to collect the rents of the land, or make expenditures thereon, and his acts in so doing were not a subject of accounting before the surrogate.

The part of the decree appealed from must be affirmed, with costs, to be paid by the appellant.

All concur.  