
    Matter of the Estate of Joseph W. Harper, Deceased.
    (Surrogate’s Court, New York County,
    May, 1916.)
    Executors and administrators — accounting — legacy—wills — Statute of Limitations.
    Among the papers of a testator who died in 1896, bequeathing $1,000 to his sister, the executors found a note for $1,000 dated September 16, 1886, signed by her and payable to testator. The executors filed their account in 1900, but no action was brought to compel the payment of the note and the decree on accounting, which made no provision for the payment of the legacy, expressly provided that the executors should retain a certain sum to pay any judgment which might be obtained in any action or proceeding brought to recover the legacy. On the judicial settlement of the account óf the executors, on their request for instruction as to whether they should pay the legacy to the legal representatives of testator’s sister who died in 1914, held, that the court could not make a judicial determina^ tion of the issue; that the executors must be left to their own discretion as to the advisability of paying the legacy or settling their account .upon the assumption that the legacy had been satisfied, or was barred by the Statute of Limitations.
    
      Proceeding upon the judicial settlement of the account of executors.
    Olin & Phelps (W. G. Murphy, Jr., of counsel), for executors, petitioners.
    Crawford & Tuska (Benjamin Tuska, of counsel), for Elsie Dodge Pattee as executrix, claimant.
    William Spoerle, for Olive E. Grismer as general guardian of Joseph Harper, infant.
   Fowler, S.

The executors have filed their account and ask the surrogate for instructions as to whether they should pay a certain legacy of $1,000.

The testator died in 1896, leaving a will by which he bequeathed $1,000 to his sister, Emma Harper Dodge. The executors found .among the testator’s papers a promissory note for $1,000, dated September 16, 1886, signed by Emma Harper Dodge, and payable to the testator. They filed their account in 1900, but no action was brought to compel the payment of the note and no provision was made in the decree for the payment of the legacy of $1,000. The decree expressly provided that the executors should retain the sum of $2,500 “to pay any judgment which might be obtained by Emma H. Dodge in an action or proceeding brought to recover the legacy. No proceeding was brought in this court to compel the payment of the legacy, and the executors now ask the court for instructions as to whether they should pay it to the legal representative of Emma Harper Dodge, the latter having died in 1914.

The court cannot authorize the executors to pay the legacy or to refuse payment thereof, as the question is not properly before the court at this time. If the representative of the deceased legatee should bring a proceeding to compel the payment of the legacy, the executors could interpose any defense to which they considered themselves entitled-, and the surrogate could then determine the question as to whether the legacy should be paid. But in this proceeding there is no issue upon which the court can make a judicial determination, and the executors- must be left to their own discretion as to the advisability of paying the legacy or settling their account upon the assumption that it has been satisfied or barred by the Statute of Limitations.

Decreed accordingly.  