
    (1 Misc. Rep. 71.)
    In re MORGAN’S ESTATE.
    (Surrogate’s Court, Westchester County.
    September, 1892.)
    Payment of Legacy—Death op Legatee.
    Code Civil Proc. § 2481, authorizes the surrogate’s court, in respect to matters subject to its cognizance, but not expressly provided for, “to proceed * * * according to the course and practice of a court having, by the common law, jurisdiction in such matters, * * * and to exercise such incidental powers as are necessary to carry into effect the powers ex-, pressly conferred.” Meld, that the court, on an accounting by executors, will order to be paid into court, for the benefit of whoever may establish a legal right to it, a legacy to an infant who dies before it is payable, and for whom no administrator has been appointed, as such case is not governed either by section 2729, providing that on such accounting the administrator of a deceased legatee shall be cited to attend, or by sections 2747 or 2748, providing, respectively, for the payment of a legacy where the legatee is unknown, and where a legacy is not paid to the person entitled within two years from the date of the decree.
    Proceeding for the accounting of George H-. Morgan and S. Newton Smith as executors of the will of George D. Morgan, deceased. Testator gave a legacy to his grandson George D. M. Fullerton, to be paid when he should become 21 years of age. The executors filed a petition for a settlement of their accounts, but the infant legatee died before service of the citation on him, and no administrator of his estate was appointed. He left as his next of kin his father, who claimed that the legacy should be paid to him.
    Eugene Smith, for the executors.
    M. M. Silliman, special guardian.
   COFFIN, S.

There seems to be no provision of law precisely covering the facts of this case, but- it is provided by section 2729 of the Code that a petition of an executor or administrator maj* be presented, praying that the creditors and decedent’s husband or wife, next of kin, and legatees, “or, if either of those persons has died, his executor or administrator, if any, may be cited to attend the settlement.” Hence, had this minor died before filing the petition, it would seem his administrator would have been the only proper party to the proceeding, if he had any. The statute does not authorize the citing of a next of kin of a deceased creditor, husband, wife, legatee, or next of kin, and they are, therefore, in no sense, proper parties to the proceeding, and payment cannot be decreed to be made to them, simply, but it may decree such payment to the executor or administrator of any of them. Of course, the death of the minor does not cause the proceeding to abate, but his administrator, if he had any, might intervene, and be made a party, or he could be brought in and made a party under the provisions of section 2743. Simply as next of kin, the father cannot, under the authority of section 2731, appear upon the hearing, and make himself a party to the proceeding, because he is not a person interested in this estate. His interest is in the estate of his deceased son. If, instead of being a minor, the deceased legatee had been of full age, to whom the legacy had been directed to be paid when he reached the age of 40, it is very certain that a vested legacy could be paid only to his executor or administrator, to be administered as a part of his estate. It is not discovered that the fact of his being a minor can make any difference. It does not seem to me that this is a case for a direction in the decree, as contemplated by either sections 2747 or 2748. The first provides that, where the person entitled to a legacy is unknown, the decree must direct it to be paid into the state treasury. That, it would appear, contemplates a legacy to an individual or a class of persons, as to the child or children of A. B., who are unknown, and cannot be ascertained. Here the legatee is known. The next section, which enacts that the decree must direct the executor to pay to the county treasurer a legacy which is not paid to the person entitled thereto at the expiration of two years from the date of the decree, etc., contemplates a case where the decree directs payment to a legatee who is known, and is alive, and is, as Surrogate Bollins well says in the case of Koch v. Woehr, 3 Bern. Sur. 282, “of universal application,” but that the insertion of such a provision in the decree “is generally of no practical importance, and in most cases may with propriety be omitted.” There being found no statute directly applicable to the facts as presented here, resort must be had to subdivision 11 of section 248.1 of the Code, in search of a power authorizing a solution of the difficulty. Legislative wisdom has there furnished the way to escape from it. This court is there clothed with power, “with respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed, in all matters subject to the cognizance of this court, according to the course and practice of a court having, by the common law, jurisdiction of such matters, except as otherwise prescribed by statute; and to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred.” The court of chancery formerly, and not the supreme court, would undoubtedly have power, in a like case, to direct the legacy or fund to be paid into court, to be delivered over ultimately to any one who could establish a legal right to its possession. Therefore the decree herein should contain such a provision. Thus the difficulty supposed to have been encountered in lie Lane’s Estate, (Surr.) 20 N. Y. Supp. 78, did not really exist.  