
    In the Matter of the Estate of David Walker, Deceased, Polly Walker, as Executrix, etc., of David Walker, Deceased, Appellant; James Walker, Respondent.
    
      An agreement by a devisee, hewing a life estate and a right to use the proceeds of property, with a third person to sell it and pay over the proceeds—it creates an agency or a loan with collateral, not a trust — the devisee becomes a creditor of the deceased third person’s estate—a surrogate cannot decree payment of such an unliquidated claim—what surrogate may direct payment thereof after an accounting elsewhere.
    
    Harriet A. Walker, a resident of Delaware county, died, leaving a will, which was admitted to probate in that county, by which she gave to her husband, James Walker, the use of all her real and personal property for life, with the added right to sell and dispose of any of the property “ so far and so much as he shall deem necessary for his comfortable support and maintenance during his life.” The will further provided that the portion of the property left at . the death of her husband should pass to her two sons equally. Thereafter James Walker conveyed to David Walker a vendor’s interest in a land contract, which apparently constituted part of his wife’s estate, under an agreement that David Walker should collect the moneys unpaid under the land contract, and would, during the term of the natural life of James Walker, advance to the latter such sums of money as the said James. Walker should need for his support and maintenance, not exceeding in the aggregate the sum collected.
    David Walker further agreed to pay the expenses attending the last sickness and funeral of James Walker, and that, upon the latter’s death, he would convey the land and the land contract to Silas Walker, a son of the said James Walker, upon being reimbursed for the moneys which he had advanced pursuant to the contract, less the amount which he had received thereunder.
    David Walker, after collecting certain of the moneys due upon the land contract and paying over said sums to James Walker, died, leaving a last will and testament which was admitted to probate in Broome county, of which county he was a resident.
    In a proceeding instituted in the Surrogate’s Court of Broome county by James Walker to compel the executrix of David Walker to account for the money and securities received by her testator under the agreement, it was
    
      Held, that the agreement between James Walker and David Walker did not create an express trust in David Walker, as James Walker, under the terms of his wife’s will, had no power to create such a trust;
    That, under the circumstances, the contract with David Walker created either an agency, revocable at the pleasure of the principal or merely the relation of lender and borrower with security given for moneys to be loaned;
    That James Walker was a creditor of the estate of David Walker to the extent of the balance of the proceeds of the agency in the hands of David Walker at the time of his death;
    That, as the claim was not liquidated, the surrogate of Broome county had no power, under .section 2722 of the Code of Civil Procedure, to direct its payment;
    That the claim could be liquidated only upon an accounting and that, as such accounting was an accounting of the acts of David Walker and not of the acts of his executrix,. the surrogate would not have jurisdiction to entertain it, éxcept - as provided by section 1822 of the Code of Civil Procedure, upon the - consent of all the parties;
    That if the claim had been liquidated or established, the surrogate of Broome county was the only surrogate having authority to direct its payment.
    Appeal by Polly Walker, as executrix, etc., of David Walker, deceased, from a decree of the Surrogate’s Court of the county of Broome, entered in said Surrogate’s Court on the 3d day of April, 1901, directing the executrix of David Walker, deceased, to pay a claim against said decedent’s estate alleged to be due James Walker.
    In 1889 Harriet A. Walker, a resident of Delaware county, died, leaving- -her surviving her. husband, James Walker, ; and two sons, Walton H. Walker and Silas Walker. She left a will which was duly admitted to probate in Delaware county, by which she gave to her husband, James Walker, the use of all her. real and personal property for life, with the added right to sell and dispose of any of the property, ■“ so far and so much as he shall deem necessary for his comfortable support and maintenance during his life.” By the second provision of the will what was left of the property, at the death of the husband, was given to the two sons equally. The husband, James Walker, was named as executor of the will. James Walker took possession of the entire estate, and thereafter, and in 1892, entered into an agreement with his brother David Walker, which recited that James Walker had conveyed to David Walker certain real estate, occupied by Richard J. Bundy, and has assigned to David Walker a contract for the sale and purchase of said premises, made by Samuel C. Gilbert of the first part, and the said Richard' J. Bundy of tide second part. In consideration of this transfer and this assignment the said David Walker by that contract agreed that he would advance him such sums of money for his support and maintenance as the said James Walker should request and need thereof during the terra of his natural life, the aggregate of such moneys not to exceed the sum due and unpaid on the said contract. The said David Walker further agreed that he would pay the necessary funeral expenses, and for medical attendance during the last sickness, and that at the death of James Walker he would convey to Silas Walker, his son, the said land and the said land contract, upon being reimbursed for the moneys that he had theretofore advanced pursuant to the contract, less the amount he had received upon the contract.
    Thereafter David Walker, who was a resident of Broome county, collected certain of the moneys due upon the contract and paid over certain sums to James Walker, and, in the month of January, 1899, died, leaving a last will and testament, which was admitted to probate in that county, by which Polly Walker, his wife, was made his executrix.
    Thereupon James Walker demanded possession of the securities, which were in the hands of David Walker at his death, and an accounting under the agreement made between him and David Walker. The surrogate ordered Polly Walker to account to James Walker for the moneys and securities held by David under the aforesaid agreement. ■ From this order or decree this appeal is taken.
    
      C. T. Alverson and Taylor L. Arms, for the appellant.
    
      A. M. Sperry and James L. Greene, for the respondent.
   Smith, J.:

By the will of Harriet Walker, James Walker took only a life estate in her property, with the right to use so much of the principal as was necessary for his support. What remained of that estate, at the death of James Walker, was given to their two sons, Walton and Silas. This remainder was not the subject of disposition by James Walker, and his attempt, in his contract with David Walker, to pass' the same to Silas Walker was clearly void, as in contravention of the instrument by which he held his title. H"o evidence was taken' upon this proceeding and the decision must rest upon the petition and the answer. While the facts are not clearly stated it is fairly inferable that the interest conveyed under the contract to David Walker was simply a vendor’s interest in a land contract. The moneys upon this contract were to be collected by David Walker and paid to James Walker as his needs should require, and for the balance David was to account. The contention of the appellant is that by the contract David Walker was made the trustee of ail express trust, which trust, upon the death of David, vested in. the Supreme Court. The answer of the respondent is that by the will of Harriet Walker, James Walker was himself made a trustee" of this property, which trust he was powerless to delegate to David Walker, and that the contract with David Walker" was, therefore, void. It seems clear that under the will of Harriet Walker, James Walker, as executor and life tenant, held such a trust position as ■ could not be abrogated by the granting of an irrevocable trust or the giving of an irrevocable power of attorney in respect of the property so held. He had the right, however, to constitute David Walker his agent to collect the rents and profits and account to him therefor. As a necessary incident of the agency he probably had the right to give to David his title to the land and land contract such as it was. James then is alone interested in the "performance of David’s contract. ' Ho provision is made for any compensation to David. Under the circumstances of this case the contract with David must be held to create either an agency revocable, at the pleasure of the principal, or merely the relation of lender and borrower with security given for moneys to be loaned. (See Heermans v. Ellsworth, 3 Hun, 473 ; Walker v. Denison, 86 Ill. 142; Blackstone v. Buttermore, 53 Penn. St. 266.) With either construction of the agreement with David Walker, no trust imposed upon James Walker by the will of Harriet Walker has been violated, and at the death of David Walker his executor is required to account for any balance she may have in her hands, which was held by David Walker at his death, as the proceeds of this agency, or. as the balance of security after payment of moneys loaned. To the amount of this balance James Walker is, I think, a creditor of the estate.

This decree is not justified, however, by the mere fact that the petitioner is a creditor. The claim which can be directed paid by the surrogate under section 2722 of the Code of Civil Procedure is a-liquidated claim undisputed. This claim is not liquidated and can only be liquidated upon an accounting. That accounting is not an accounting of the acts of Polly Walker, as executrix, but the accounting of the acts of David Walker. Such an accounting the surrogate is wholly without jurisdiction to entertain, except upon the stipulation of all parties. Without the consent to try the same before the surrogate, the claim must be liquidated and established against the estate as any other claim, before the surrogate can order its payment. After the liquidation of the claim or its establishment the surrogate of Broome county is the only surrogate with the authority to direct its payment. The appellant’s claim that the surrogate of Delaware county is the only surrogate with jurisdiction in this matter is, we think, ill founded. For the reason then that no consent has'been given for the adjudication of this claim before this surrogate, as seems to be permitted by section 1822 of the Code of Civil Procedure, we think the order of the surrogate was erroneously made and should be reversed.

All concurred.

Decree reversed, without costs, and petition dismissed.  