
    In the Matter of the Estate of Patrick A. Fogarty, Deceased. Sarah A. O’Reilly, as Executrix, etc., of Hugh O’Reilly, Deceased, Appellant; Patrick Skelly and Others, as Residuary Devisees, Respondents.
    First Department,
    February 8, 1907.
    Executors and administrators — accounting by representative of deceased trustee—jurisdiction of surrogate and Supreme Court — issues involving title to real estate.
    The Supreme Court and the Surrogate’s Court have .concurrent jurisdiction to require the personal representatives of deceased executors and trustees to account for property which came into their hands. Ordinarily the Supreme Court will refuse to exercise its jurisdiction unless the jurisdiction of the Surrogate’s Court be insufficient to determine all the questions involved.
    The Surrogate’s Court having a limited jurisdiction and being without power to try title to real estate, should refuse to require the representative of a deceased trustee to account when a question involving the title to real estate must be decided as a prerequisite to the accounting.
    Appeal by Sarah A. O’Reilly, as executrix, etc., from an order of tlie Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 12th day of December, 1906, requiring her to file a duly verified account of the proceedings of said Hugh O’Reilly, deceased, as executor of and trustee under the will of Patrick A. Fogarty, deceased.
    
      Edward W. S. Johnston, for the appellant.
    
      Richard H. Clarke, Jr. [Franklin H. Mills with him on the brief], for the respondents.
   Laughlin, J.:

It appears that Patrick A. Fogarty died February 25, 1889, leaving a last will and testament, in and by which he appointed Hugh O’Reilly, William Purcell and the petitioner, Patrick Skelly, executors and trustees. Letters testamentary were issued to them and they qualified and entered upon the discharge of their duties. By a proceeding instituted in the Surrogate’s Court, of which all parties in interest had due notice, the accounts of the executors were duly settled by a decree of the Surrogate’s Court, made and entered on the 17th day of January, 1895, as of the 31st day of December, 1894, and the executors were discharged upon paying over to themselves as trustees under the will the sum of $11,247.64. The letters issued to Purcell were revoked on the 29th day of October, 1895,, and it appears that subsequent to the time of his discharge as •executor and up to the time of his death, on March 7, 1900, he did not act as trustee. ' The petitioner, Skelly, and "the decedent, O’Reilly, remained trustees until the death of the latter on March 21, 1904; but it is alleged by the-petitioner that the decedent O’Reilly was the active trustee. It is in effect admitted in the petition that the decree settling the accounts of the executors was complied with, and that the trustees, including the deceased trustee, have accounted for the money received by them as trustees from themselves as executors. It is also alleged that the decadent was the active executor, and that in the' accounting of the executors, of which he had charge, they accounted for one-half of the rents, issues and profits of the premises known as Ho. 81 Ridge street, borough of Manhattan, Hew York. It appears by the answer of the appellant that in the accounting they accounted for one-half of the rents,, issues and profits of said premises from Fogarty’s death, which occurred on February 25, 1889, 'down to and including the 31st day of-December, 1894. It now appears that' a deed' of said premises, signed and acknowledged by the deceased executor, individually, and his wife, bearing date October 23, 1883, to said Fogarty, was recorded on the 30th day of- June, 1903. The theory of the petitioner is that the title to said premises was in Fogarty from the date of said deed,, and that the deceased executor, who personally .received the rents, issues and profits of the premises; should have accounted for 'the whole, instead of one-half; and the moving and reply papers, though vague and indefinite-on this subject, may be open to the inference that it is also claimed that he received and failed to account for the rents, issues and profits of the premises from the time of the accounting down to the time of his death. At most, however, the petitioner seeks an accounting concerning one-half of the rents, issues and profits, of this parcel of land, from the date of the deed to the former accounting, and for the entire rents, issues and profits Rom that time until the death of the deceased trustee. The personal representative of the deceased trustee, whom the petitioner desires to have account* for his acts as executor and trustee, interposed an answer to the petition, .setting up the former accounting as a bar, denying that the deceased trustee had failed fully to account, alleging that one-half of the rents for which he accounted constituted a gift to the children of Fogarty, and that he likewise paid over as a gift to .the children of Fogarty a like proportion of the rents, issues and profits of the said real estate between the date of the accounting and the time of his death; but, in substance, alleging that he was under no legal obligation so to do, ás the title was in him, and specifically alleging that the deed was never delivered and never became operative, and that during the last illness of the deceased executor the deed was surreptitiously taken from his custody and subsequently placed on record without his authority or knowledge, and that, therefore, the title to real estate is necessarily involved in the accounting which the petitioner seeks, and consequently 'the Surrogate’s Court is without jurisdiction.

The learned counsel for the petitioner insists that the recording of the deed nearly twenty years after its execution, and even long • after the death of the grantee, raises a presumption of due delivery and that the accounting must be had according to the record title as shown by this deed. Even though there be such a presumption, a question which it is not necessary to decide on this appeal, the - presumption is overcome by the facts alleged in the answer. If the * deed was not delivered, it of course did not become operative. The appellant cannot be compelled to account until she has an opportunity, in a court of competent jurisdiction, to try that question on the merits. The Supreme Court and the Surrogate’s Court have concurrent jurisdiction to require executors and trustees and in case of their death, their personal representatives, so far as property has come into their hands, to account for their acts, and ordinarily the Supreme Court will refuse to exercise it-s jurisdiction ; but where, as here, the jurisdiction of the Surrogate’s Court is insufficient, to determine all of the questions necessarily involved, the Supreme Court will exercise jurisdiction. (Hard v. Ashley, 117 N. Y. 606 ; Sanders v. Soutter, 126 id. 193; Douglas v. Yost, 64 Hun, 155 ; Matthews v. Studley, 17 App. Div. 303, 312; Strong v. Harris, 84 Hun, 314; Blake v. Barnes, 28 Abb. N. C. 401.) The Surrogate’s Court, being á court of limited jurisdiction, and being without jurisdiction to try the title to the' real estate,, should have dismissed the petition upon it being thus made to appear that á question relating to the title of the real estate, which should be decided before an accounting should be ordered, was involved. (Matter of Spears, 89 Hun, 49.)

It follows that the order should be reversed, with ten dollars costs and disbursements, and the petition should be dismissed, with ten dollars costs.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and petition dismissed, with ten dollars costs. Order tiled.  