
    PITTMAN v. JOHNSON.
    
      N. Y. Supreme Court, Fourth Department ;
    
    
      January, 1885.
    Action fob legacy.—Jurisdiction of Surrogate’s Court CONCURRENT.—FORMER ADJUDICATION BY ACCOUNTING. —Executor’s liability for rents and profits.— Costs, charged personally.
    An action lies against an executor, to recover a legacy of annual income, notwithstanding the existence of a concurrent remedy by proceeding in the surrogate’s court.
    Where the legacy is in lieu of dower, since it does not abate, other, legatees are not necessary parties. • :
    
      A surrogate’s decree, settling an executor’s account before the debts had been paid and a surplus ascertained, is not a bar t.o such an action.
    Where such a decree is put in evidence by defendant, in such action, it is competent to show by parol the ground of the decree orally assigned by the surrogate.
    A legatee of annual income on a residue, in lieu of dower, is entitled to prove, in her action against the executor, his receipt of rents and profits from testator’s death, and notwithstanding they were included in the settlement of account.
    An executor who takes an unsuccessful appeal to avoid a personal liability, may be charged personally with the costs.
    Appeal from a judgment entered in Oneida county upon the report of a referee, for $645.38.
    May 3, 1878, Lemuel Pittman, the testator, died, leaving the wife, his widow, and six children him surviving. His last will and testament was admitted to probate July 10, 1878, and the defendant was appointed executor and trustee under said will, and he qualified as such. The testator devised to his widow, the plaintiff, the possession and the use of the premises known as number 42 Lansing street, in the city of Utica, for and during the period of her natural life, and also, viz.:—“The net annual income and interest of all the rest, residue and remainder of my estate, real, personal and mixed, after paying therefrom the annual taxes, insurance and necessary repairs, for and during the term of her natural life, or as long as she should remain my widow and unmarried—the same to be in lieu of dower, and of all and any other claim or claims on my estate.”
    The deceased left two other parcels of real estate, and subsequently to July 10,1878, the defendant leased the real estate, and collected the rents therefrom down to April 1, 1882, and then disposed of all the real estate except the homestead on Lansing street.
    Defendant paid all the debts, liabilities, funeral expenses and the expenses of settling the estate, including executor’s commissions, and paid to the plaintiff the sum of $39 ; and there remained in his hands, April 1, 1882, $2,048.92.
    He had received, prior to December, 1882, by way of rents for the real estate, $1,923.67. He had paid out interest on mortgage on real estate $583.75; for taxes, $388.82; for insurance, $77.94; and for necessary repairs, $152.78.
    On December 10, 1882, the defendant had received and had in his possession from the net annual interest and income from the estate, after the payment of the taxes, insurance and repairs, $720 38 ; his commissions on that sum were $36.02, leaving a balance of $645.36; and the referee found while that sum was in his hands the plaintiff demanded payment and was refused.
    On May 23, 1881, the executor filed his petition in the surrogate’s court of Oneida county, asking for the final settlement of his accounts as executor; andón the return of the citation, on July 2, 1881, the executor appeared in the surrogate’s court, and submitted his report and the account-, by which it appeared he had received the^um of $3,751.39. He was credited with the amount of expenses paid, commissions allowed,' statutory exemptions, etc., in the sum of $3,748.97, leaving a balance of $2.42 in his hands as executor.
    The surrogate on that day entered an order declaring, viz. : the proceedings of Henry Johnson, as executor and trustee of the estate of Lemuel Pittman, deceased, were in all respects just and proper, and that he had fully and faithfully executed his trusts as far as it appears by the sworn statement of the accounts on file, July 2, 1882.
    On the trial of this action, plaintiff was allowed to show that the surrogate, in rendering his decree, stated orally that the' legatee could not claim anything till the debts were paid.
    
      O. D. Prescott for appellant.
    
      
      W. T. Dunmore, for respondent.
    I. As to propriety of the action, cited : Code Civ. Pro. § 1819 ; Red. on Surr. [2 ed.] 578 ; Eberhardt v. Schuster, 6 Abb. N. C. 141 ; Rundle v. Allison, 34 N. Y. 180 ; Lewis v. Maloney, 12 Hun, 207. As to concurrent jurisdiction : Willard Eq. Jur. [Potter’s ed.] 88, 89 ; 3 Blacks. Comm. 437; Red. on. Surr. [2 ed.] 70, 639 ; Seymour v. Seymour, 4 Johns. Ch. 409 ; Spelman v. Terry, 74 N. Y. 448 ; Wood v. Brown, 34 N. Y. 343 ; Christy v. Libby, 35 How. Pr. 119 ; affirmed in 2 Daly, 418 ; S. C., 5 Abb. Pr. N. S. 192; Nagle v. McGinnis, 49 How. Pr. 195 ; Code Civ. Pro. § 217.
    II. As to parties: Stewart v. Chambers, 2 Sandf. Ch. 382 ; Cromer v. Pinckney, 3 Barb. Ch. 466 ; Hallett v. Hallett, 2 Paige, 15; Williamson v. Williamson, 6 Paige, 305 ; Betts v. Betts, 4 Abb. N. C. 391; Scofield v. Adams, 12 Hun, 366 ; Isenhart v. Brown, 1 Edw. Ch. 411.
    III. That the accounting was not a bar: Code Civ. Pro. §§ 1819, 2742 ; Fulton v. Whitney, 66 N. Y. 557 ; Wilcox v. Lee, 1 Abb. Pr. N. S. 250 ; Marcellus v. Countryman, 65 Barb. 201; Slauson v. Englehart, 34 Barb. 198 ; Mitchell v. Cook, 17 How. Pr. 115 ; Butler v. Wright, 2 Wend. 369; Bull v. Hopkins, 7 Johns. 20 ; Wolfe v. Washburn, 6 Cow. 261; Reformed, &c. Church v. Brown, 54 Barb. 191; McKnight v. Dunlop, 4 Barb. 36 ; East N. Y., &c. Co. v. Elmore, 53 N. Y. 624 ; Fitzpatrick v. Brady, 6 Hill, 581 ; Briggs v. Wells, 12 Barb. 567 ; Simson v. Hart, 14 Johns. 62 ; Hackett v. Connett, 2 Edw. Ch. 72; Spelman v. Terry, 74 N. Y. 448.
    IV. As to oral evidence of the ground of the decree : Briggs v. Wells, 12 Barb. 567; Agan v. Hey, 18 N. Y. W. Digest, 115 ; S. C., 30 Hun, 591; Doty v. Brown, 4 N. Y. 75.
    V. That plaintiff was entitled to the income from the estate from the date of testator’s death: Brown v. Knapp, 79 N. Y. 136 ; Cooke v. Meeker, 36 N. Y. 15; Hepburn v. Hepburn, 2 Bradf. 74; Parkinson v. Parkinson, 2 Bradf. 77; Seymour v. Butler, 3 Bradf. 193 ; Williamson v. Williamson, 6 Paige, 298; King v. Talbot, 40 N. Y. 76 ; Marsh v. Hague, 1 Edw. 174; Pierce v. Chamberlain, 41 How. Pr. 501; Lockwood v. Lockwood, 3 Redf. 330.
   Harding, P. J.

We think that the referee’s finding that a demand was made on December 1, 1882, of the defendant in behalf of the plaintiff, was warranted by the evidence given upon the hearing.

Mr. Dunmore testified affirmatively that he made the demand personally of the defendant, and that the defendant refused to make any payment to the plaintiff for or on account of the trust estate.

Johnson as a witness admitted that he held a conversation in December, 1882, with Mr. Dunmore, and that Mr. Dunmore claimed that the plaintiff was entitled to interest on all the money in his hands from the time he was appointed executor. He denies, however, that Mr. Dunmore made any demand for any money in any way, shape or manner.

It was for the referee to determine upon the conflict between these witnesses whether or not the demand was established. We are not prepared to say that his findings are against the truth of the matter.

This action was brought to recover the income of the trust property which came to the hands of the defendant.

We think this court has jurisdiction of such an action, and that the jurisdiction of the surrogate in respect to such a legacy is not exclusive. Section 1819 of the Code of Civil Procedure provides that a person entitled to a legacy may maintain an action against the executor who refused to pay over after the expiration of one year from the granting of letters testamentary.

It was held in Lewis v. Maloney, 12 Hun, 207, viz.: ee The supreme court has concurrent jurisdiction with the surrogate in enforcing the payment of legacies.” Such jurisdiction has been maintained for a long period of time anterior to the adoption of the section to which we have referred (Willard' s Equity Jur. [Potter’s edition], 88 ; Seymour v. Seymour, 4 Johns. Ch. 409 ; Spelman v. Terry, 74 N. Y. 448).

We think there is no force in the suggestion that the plaintiff could not recover because the proper parties were not before the court.

This legacy given to the widow in lieu of dower, does not abate as other legacies, and other residuary legatees are not necessary parties (Scofield v. Adams, 12 Hun, 366).

Besides, there was no defect of parties alleged as a defense in the answer; and whatever objection the defendant might have had in that regard was waived (Code Civ. Pro. §§ 488, 498, 499). We think the decree entered July 2, 1882, was not a bar to the plaintiff’s right of recovery of her legacy. Section 2742 of the Code of Civil Procedure declares upon what facts a surrogate’s decree should be conclusive.

We think the account rendered by the defendant to the surrogate was his account as executor and not as testamentary trustee. In July, 1881, the debts of the testator had not been paid, and there had been no demonstration that there would have been a surplus after the debts were paid.

It does not appear that the plaintiff’s right to the legacy which she seeks to recover in this action was or could have been litigated in the proceedings before the surrogate to settle the executor’s accounts. We therefore conclude that the surrogate’s decree was not a bar to the plaintiff’s .right of recovery in this action (Fulton v. Whitney, 66 N. Y. 557; Marcellus v. Countryman, 65 Barb. 201). We think it was competent to show by parol what questions were included in the hearing before the surrogate (Briggs v. Wells, 12 Barb. 567 ; Agan v. Hey, 30 Hun, 591; 4 N. Y. 75).

We think the plaintiff was.entitled.to her rents and profits and the income of the testator’s estate remaining after the payment of the funeral expenses, expenses of administration and the debts, though the precise sum was not ascertained until a period subsequent to the probate of the will (Cooke v. Meeker, 36 N. Y. 15; Pierce v. Chamberlain; 41 How. Pr. 501). Under this ruling, the finding of the referee of the amount due to the plaintiff is sufficiently favorable to the defendant.

We are of the opinion that the referee committed no error as to costs of which the defendant can successfully complain. Where a trustee obtains funds belonging to the cestui que trust, he should be ready and willing to pay and apply .the same according to the-direction and the intent of the founder of the trust, without delay (Eberhardt v. Schuster, 6 Abb. N. C. 141).

The defendant has prosecuted this appeal for the purpose of relieving himself of personal liability, and as he has been unsuccessful, we are of the opinion that the costs of this appeal should be charged upon the appellant personally (Code Civ. Pro. § 3246; Butler v. B. & A. R. R. Co., 24 Hun, 99).

Judgment affirmed with costs against the appellant personally.

• Boatídmae" J., concurred.

Follett, J.[Dissenting.]

The supreme and surrogate’s courts have concurrent jurisdiction to compel the defendant to pay the plaintiff the amount to which she is entitled under the will; but the court which first acquires jurisdiction has exclusive jurisdiction (Lewis v. Maloney, 12 Hun, 207). As to all rents received prior to the accounting before the surrogate, that court ac- ■ quired jurisdiction, before which court the parties litigated their claims, and are bound by its decree until reversed.

The referee held that, the plaintiff was entitled to recover the rents received prior to and embraced within the decree of the surrogate’s court, which was error.

Apart from the decree of the surrogate’s court being a bar to the recovery of the rents received prior to its entry, the plaintiff, at most, was only entitled to recover the income of the clear residue ($2,048.92) from the death of the testator, May 3, 1878, to February 14, 1883, the date of commencement of the action (Williamson v. Williamson, 6 Paige, 298 ; Williams on Executors [6 Am. ed.] 1488-1492, and cases there cited).

The will provides, first, for the payment of debts, then specifically devises No. 42 Lansing street, and then gives the next annual income of the rest, residue and remainder of his estate to his widow.

Residue means what is left after paying the debts, devises and legacies (Phelps v. Robbins, 40 Conn. 250 ; 2 Williams on Ex'rs. [6 Am. ed.] 1563-1564 ; 2 Abb. Law Dict. 422 ; Wharton's Law Dict. [6 ed.] 843).

Under the decision of the referee, the plaintiff recovers the income upon the residue from the death of the testator, and upon the debts, or upon the amount required to pay the debts, and more. It was not shown that defendant received, or could have received, income over and above expenses equal to the legal rate of interest on the residue ; yet the sum awarded exceeds the sum which the residue could have earned at six per cent, from the death of the testator to the commencement of the action.

The referee gave the plaintiff costs out of the estate and refused the defendant costs.

The prevailing opinion on this appeal charges the defendant personally with the costs of this action. «No objection has been raised to the defendant’s account, or to a single item in it. His administration of the trust has been wise and economical. No part ef the estate has been used for the payment of counsel or doubtful expenses. He submitted the claims of the widow to the surrogate’s court, without the aid of counsel, making no contention, and has strictly followed its decree. To charge a trustee with costs under such circumstances, because an appellate court takes a different view from a court of concurrent jurisdiction of a doubtful question of law, is imposing too severe responsibilities upon trustees. It is, in effect, saying that they must know at their peril how the appellate court will decide the mooted question.

This action not being for the recovery of the income upon the residue, and no demand having been made upon that theory, the judgment should be reversed and the complaint dismissed, with costs against the plaintiff.

Judgment affirmed, with costs.  