
    Maria E. G. McK Ward et al., Plaintiffs, v. Mary M. Ward et al., Defendants.
    (Supreme Court, New York Special Term,
    January, 1908.)
    Jurisdiction — Jurisdiction of particular courts — Concurrent jurisdiction— Supreme Court and Surrogate’s Court — When Supreme Court will not exercise.
    Executors and administrators — Accounting and settlement — Procedure to obtain accounting — Action for accounting — Propriety of accounting by action, etc.
    Where the assignees of W. of all his interest as heir at law and next of kin of his brother J. brought an action in equity for an accounting against the widow and heir at law of C., another brother, four of the defendants being also administrators of C. and three of them being also administrators of J., and the plaintiffs alleged that C., while living and acting as administrator of J., received property belonging to J.’s estate while he was indebted to it, and the defendants alleged and proved that there had been no final accounting as to J.’s estate; that W., then also deceased, was indebted to the estate of J. upon a mortgage bond for the foreclosure of which an action was pending; and it appeared that the plaintiffs were not entitled to all the interest of W. in the estate of J. but only to the interest of J. as heir at law and next of kin of a certain other deceased person and that such interest may have been offset by the indebtedness of W. on the mortgage bond, held, that the proper remedy of plaintiffs was an accounting by the administrators of J„ pursuant to section 2606 of the Code of Civil Procedure, in which the conflicting claims of the parties might be fully litigated and settled, and that the complaint in said action should be dismissed.
    
      Action in equity by the assignees of the heirs and next of kin of a deceased person to recover a share in his estate alleged to have been received by. his administrator, since deceased, and to have come into the possession of the latter’s personal representatives, heirs and next of kin.
    Wilson & Wallis, for plaintiffs.
    Henry M. Ward, for defendants Ward et al.
    Strong & Cadwalader, for defendant Clark.
   Blanchard, J.

This is a suit in equity to reach certain property which devolved upon Charles H. Ward in his lifetime while he'was administrator of John Ward, his deceased "brother, and at fhe same time indebted to the estate of John Ward. It is claimed that Charles took said property charged with the trust of paying his indebtedness to John Ward’s estate, and that the defendants herein, being the widow and heirs at law and next of kin of Charles, who has since died, received said property without paying consideration therefor and with knowledge of the facts above mentioned. The plaintiffs base their right to sue upon an assignment to themselves by William G. Ward, brother of John and Charles, of all of William’s interest as heir at law and next of kin of John, in the interest which John had acquired in the residuary" estate of one Henry Hall Ward. The plaintiffs claim, therefore, that the defendants should account to the plaintiffs to the extent of plaintiffs’ alleged interest in the ■ estate of John by reason of the assignment above mentioned. Hour of the defendants are administrators of the estate of Charles, arid three of these four are also administrators of the estate yet unadministered of John. The answers of the defendants, among other defenses, set up that final accounting has never been had in the administration’ of the estate of John, and that the estate of William is still indebted to the estate of John by reason of a mortgage bond made by William in his lifetime to John and never paid. The proof establishes the fact first mentioned, and further shows that the nonpayment of the mortgage bond given by William to John is not denied by the plaintiffs, and that an action for recovery upon said mortgage bond has been brought by the ' administrators of Charles against the present plaintiffs and is now pending. It appears, therefore, that the plaintiffs have not found their title to all the interest of William in the estate of John, but at most can claim title only to all the interest which William had as heir at law and next of kin of John in John’s interest in the estate of Henry Hall Ward. It further appears that William’s interest aforesaid may have been offset by the claim of John’s estate against William by reason of the mortgage bond above mentioned. Without passing upon the other defenses set up by the defendants the court decides that the considerations above set forth sufficiently show that justice to the parties herein cannot be effected by granting to the plaintiffs the remedy they desire herein. Their proper relief should be an accounting by the administrators of John, pursuant to section 2606 of the Code of Civil Procedure, in which the conflicting claims of the parties hereto may he fully litigated and settled. Accordingly, the complaint is dismissed. Bindings passed upon as indicated upon the margin thereof. Submit proposed decision and judgment upon notice.

Complaint dismissed.  