
    In the Matter of the Judicial Settlement of the Account of Joseph Gorden and Others, as Executors and Trustees under the Will of William Gorden, Deceased. Joseph Gorden and Others, as Executors and Trustees under the Will of William Gorden, Deceased, and Others, Appellants; Susan Gorden, Respondent.
    
      Surrogate—jurisdiction of, to determine whether a provision of a will in favor of a widow is in lieu of dower.
    
    A surrogate has power, in a proceeding for the settlement of an executor’s accounts, to determine whether a provision- of the will for the benefit of the ■testator’s widow is in lieu of or in addition to dower, when the determination of that question is essential to the adjustment of the accounts.
    - Appeal hy Joseph Gorden and others, as executors and trustees under the will of William Gorden, deceased, and others, from portions of a decree of the Surrogate’s Court of- the county of Kings, entered in said Surrogate’s Court on the 31st day of January, 1901,' settling the accounts of the executors and trustees under the will of William Gorden, deceased.
    
      Wülimn P. Pickett, for Joseph Gorden.
    
      James A. Sheehan, for Stephen M. Hoye.
    
      Frank P. Slade, for Lillie Allan and others.
    
      William G. Oooke, special guardian for Gorden infants.
    
      George P. Beebe, for Burt D. Harrington and another.
    
      George W. McKenzie, for the respondent.
   Goodrich, P. J.:

William Gorden died on January 21, 1899, leaving a will dated December 30,1898. He left him surviving a widow, Susan Gorden, twelve children and three grandchildren.

Four executors were named in the will, and in February, 1900, they filed a petition praying for the settlement of their accounts. Objections were made to several items of the account, and the surrogate appointed Norman S. Dike, Esq., referee to examine the account, to hear and determine all questions arising upon the settlement thereof, which the surrogate had power to determine, and to report thereon to the surrogate.

The referee reported under date of October 10, 1900, allowing certain items to which objections had been made and disallowing others.

The learned surrogate, in January, 1901, confirmed the report, and a decree was entered thereon. In his opinion he expressed a doubt whether he had jurisdiction to determine the widow’s claim, for dower in addition to the provisions of the will for her benefit, but held that she was entitled to dower upon the authority of Closs v. Eldert (30 App. Div. 338) and Konvalinka v. Schlegel (104 N. Y. 125).

It was essential to the adjustment of the executors’ accounts that the surrogate should consider and pass upon the question of dower, and there can be no doubt of his power, so far as it related to the accounts. Having decided this question in favor of the widow’s right of dower, a claim was inserted in the decree ordering that, as it appeared that the widow had brought an action in the Supreme Court for an admeasurement of her dower in the testator’s real estate and for an accounting of the rents, issues and profits, and that such rents, issues and profits were included in the accounts of the executors, they should retain in their possession one-third of such rents, issues and profits, amounting to $3,879.63, to await the determination of said action.

From this decree several appeals were taken to this court.

While I have carefully examined all the questions raised on the appeals and think that they were properly decided, I do not deem it necessary to discuss any except that which relates to the widow’s dower.

The counsel for all the parties appearing before the referee stipulated that the questions relating to the widow’s dower should be heard in the first instance before the surrogate. If such a consent were necessary to give the surrogate jurisdiction, it might be open to question whether counsel and guardians ad Utem for infant parties could make such a stipulation, but no such stipulation being necessary to enable the surrogate to retain his already acquired jurisdiction, we need not consider the question.

As to the question of dower, it is clear that upon the authority of the cases cited by the learned surrogate (Closs v. Eldert, 30 App. Div. 338, and Konvalinka v. Schlegel, 104 N. Y. 125) the decree should be affirmed, with costs to the respondent payable out of the estate. .

All concurred.

Decree of the Surrogate’s Court of Kings county affirmed, with' costs to the respondent payable out of the fund.  