
    (70 Hun, 357.)
    SMITH v. SECOND NAT. BANK OF NEW YORK.
    (Supreme Court, General Term, First Department.
    June 30, 1893.)
    Ancillary Administrator-Powers.
    Code Civil Proc. § 2700, provides that an ancillary administrator must, unless otherwise directed by court, transmit the property of decedent, received by him, to the place where the principal letters were issued, to be disposed of according to the laws thereof. Section 2701 authorizes courts to direct him to pay creditors of the deceased within the state. Section 2702 provides that, with certain exceptions, or where special provision is otherwise made, or a contrary intent is expressed or plainly to be inferred, the provisions relative to the rights and powers of executors and administrators shall apply to an ancillary administrator. EM that, it not being the intention to repeal any of the provisions of the former sections by the latter section, an ancillary administrator had no power to pledge property of decedent.
    Appeal from circuit court, New York county.
    Action by Charles A. Smith, as ancillary administrator of Caroline Smith, against the Second National Bank of New York, to recover a bond, and to enjoin its sale. From a judgment dismissing the complaint, plaintiff appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    
      Daniel Seymour, (H. Parsons, of counsel,) for appellant.
    Butler, Stillman & Hubbard, (John Notman, of counsel,) for respondent.
   VAN BBUNT, P. J.

The facts established upon the trial were that on the 1st of November, 1886, one Sidney T. Smith, as ancillary administrator of the estate of one Caroline G. Smith, applied for a loan of $600 from the defendant, the Second National Bank, stating to its president that he wanted the money for the purposes of the estate, in anticipation of .income. The bank made the loan, and it was credited to the account of the ancillary administrator. He delivered a promissory note therefor, together with a New York 7 per cent, accumulated debt bond, for $5,000, which stood in the name of, and formed part of the assets of, said Caroline G-.. Smith. The said bond and note have been in the possession of the bank ever since, and no part of th,e note has been paid, although payment has been demanded. The whole amount of the note wqs paid to the ancillary administrator, on checks drawn by him as such administrator, in the ordinary course of business, from time to time. The bank subsequently attempted to collect this bond from the city of New York, but its transfer had been stopped by the plaintiff, who had been appointed ancillary administrator in the place and stead of said Sidney T. Smith. The bank subsequently attempted to sell the bond at public auction, on notice to plaintiff, but was enjoined by temporary injunction in this action, which was brought to compel the delivery of the bond in question. At the close of the trial the appellant moved that the court direct judgment for the delivery of the bond, which was denied; and upon motion of the defendant’s counsel the complaint was dismissed, and from the judgment thereupon entered this appeal is taken.

The sole question involved in this appeal is as to the right of an ancillary administrator to pledge any.portion of the assets of the estate which may come into his hands. In the case of Hopper v. Hopper, 53 Hun, 394, 6 N. Y. Supp. 271, decided by the general term of the second department, such right seems' to have been recognized, ■ although not necessary to the decision of the case; it having been determined in that case that an ancillary administration is as efficacious as any other administration, so far as the question of legal title is concerned, the fact that the administration is ancillary only going to the discretion of the court in the disposition of the assets. The question involved in that case, however, was simply whether an executor who receives ancillary letters in this state is liable to be sued here in the same- manner as other executors, whether he has assets of the estate in this hands or not. In the case at bar, we think an entirely different question is involved, and that a consideration of sections 2700 and 2701 of the Code of Civil Procedure shows that the rights of an ancillary administrator in reference to the estate which comes into his hands are very different from those which belong to an administrator, or executor of a will proved within this state. Sections 2700 and 2701 are as follows:

, “Sec. 2700. The person to whom ancillary letters are issued, as prescribed in this article, must, unless otherwise directed in the decree awarding the letters, or in a decree made upon an accounting, or by an order of the surrogate. made during the administration of the estate, or by the judgment or- order of a court of record in an action to which that person is a party, transmit the money and other personal property of the decedent received by him after the letters are issued, or then in his hands in another capacity, to the state, territory, or country where the principal letters were granted, to be disposed of pursuant to the laws thereof. Money or other property so transmitted by him at any time before he is so directed to retain it, must be allowed to him upen an accounting. Sec. 2701. The surrogate’s court, or any court of the state which has jurisdiction of an action to procure an accounting, or a judgment construing the will, may, in a proper ease, by its judgment or decree, direct a person to whom ancillary letters are issued as prescribed in this article to pay out of the money or avails of the property received by him under the ancillary letters, and with which he is chargeable upon his accounting, the debts of the decedent due to creditors residing within the state, or, if the amount of all the decedent's debts, here and elsewhere, exceeds the amount of all the decedent’s personal property applicable thereto, to pay such a sum to each creditor residing within the state, as equals that creditor's share of all the distributable assets, or to distribute the same among legatees or next of tin, or otherwise dispose of the same as justice requires.”

It appears, therefore, by section 2700, that there is only one duty which an ancillary administrator is to perform, viz. that he must, unless otherwise directed in the manner provided for in the section, transmit the money and other personal properly of the decedent, received by him after the letters are issued, or then in his hands in another capacity, to the state, territory, or country where the principal letters were granted, to be disposed of according to the laws thereof.- - This is his first and primary duty, and the provision is mandatory. He must transmit the same, unless otherwise directed in the decree awarding the letters, or in a decree made upon an accounting, or by an order of the surrogate, made during the administration of the estate, or by the judgment or order of a court of record in an action in which the ancillary administrator is a party. Then, by section 2701, power is given to the surrogate’s court, or any court of the state which has jurisdiction of an action to procure an accounting, or a judgment construing a will, by its judgment or decree, to direct the person to whom the ancillary letters are issued to pay out of the money or avails of the property received by him under the ancillary letters, and with which he is chargeable upon his accounting, the debts of the' decedent due to creditors residing within this state; and that is all. Having done that, section 2700 becomes operative again, and he is bound to transmit the balance, if any, to the state, territory, or country where the principal letters were granted, to be disposed of pursuant to the laws thereof. But it is said that section 2702 enlarges the rights and duties of ancillary administrators, in that it expressly provides that the provisions relating to the rights, powers, duties, and liabilities of an executor or administrator apply to a person to whom ancillary letters are granted, except those contained in the fifth title of the chapter, (which relates to 'distribution by principal, executor, or administrator,) and except where special provision is .otherwise made in the article, or where a contrary intent is expressed in, or plainly to be inferred from, the text. It is plain that it was not the intention, by section 2702, to repeal any of the restrictions or requirements contained in séctions 2700, 2701; and, reading all these sections together, it seems to be apparent that the only duty of the ancillary administrator is to transmit the estate, unless he is directed, by express ’decree, to retain some portion of the same for the purpose of payment of debts due to resident creditors. In the case at bar, the ancillary administrator obtained this loan, as he stated to the president of the defendant, in anticipation of income. It is difficult to see how, either for the purpose of transmission, or even for the payment of debts, the administrator could possibly have any occasion to anticipate income. It would seem; therefore, to be apparent that the loan was required for some purpose other than connected with the administration of the estate, so far as the ancillary administrator w >s a irlicrized 'o administer ihe same. This being the case, we do not think that the defendant was a bona fide holder of the bond, so as to be protected. The judgment should be reversed, and a new trial ordered, with costs to appellant, to abide the event. All concur.  