
    SMITH against CHRISTOPHER.
    
      Supreme Court, Second Department, Second District; General Term,
    February, 1875.
    Surrogate Courts. —Executor. —Evidence.
    Under 2 H. 8., 88, § 83, which provides that no part of the property of the deceased shall be retained by an executor or administrator, in satisfaction of his own debt or claim, until it shall have befen proved to and allowed by the surrogate—and L. 1837, ch. 460, p. 531, § 37—(supplemental to that section), which allows any executor or administrator to prove his own claim against the estate upon the service of a citation on the properparcies and the return thereof, or on a final accounting—it is error for the surrogate to refuse to admit evidence of a claim by an executor against the estate on an accounting sought from him by the legatees thereof.
    Such a case is not to be confounded with the claim of a creditor, not an executor or administrator, which is disputed by the executor; in regard to which the surrogate has no jurisdiction.
    Concerning the ownership of a bond in the possession of a testator at the time of his demise, but thereafter claimed and taken by the executor as his own property, the surrogate had admitted the testitator of the widow repeating declarations of the testator in his lifetime to her, in which he declared himself to be the owner of the bond ; but had excluded written declarations bearing the testator’s signature, offered in behalf of the executor, which tended to sustain the executor’s title to the bond. Held, that if the evidence of the declarations to the1 wife were properly admitted under section 399 of the Code of Procedure—which prohibits the admission in evidence of the testimony of a party or person in interest, or of a person through whom either may derive as to any communication between the witness and the deceased, or insane, &c., against the executor heir, next of kin, legatee, committee, &o.; but which provides that this prohibition shall not extend to any transaction or communication as to which such executor, heir, next of kin, legatee, committee, &c., shall he examined in his own behalf, or as to which the testimony of the deceased or insane shall have been received— the counter declarations in writing offered should have been received.
    Abram Smith, as executor of Edward Smith who died in March, 1867, brought this appeal from a decree of the surrogate of Rockland county, and made Jane Christopher and Enos Smith, who were legatees under Edward Smith’s will, respondents.
    The petition after alleging the probate of the will and the due execution of his duties by the executor, set forth that he was the son of the testator, and during the latter’s lifetime loaned to one Stevens, the sum of three thousand dollars upon the bond of said Stevens secured by mortgage: That he entrusted this bond to the testator to collect the interest: That the obligors paid two thousand dollars on account of the principal sum to the testator: That the testator received the same for Abram Smith’s benefit, and so expressed himself when he received it: That the executor subsequently received from the obligors the residue of the amount due on the bond : That the executor also left with the testator a state certificate or bond for the sum of three thousand dollars to be exchanged for other bonds, and before such exchange was effected testator died : That the executor paid the legacies of the respondents, with a slight rebate, though the assets of the estate did not suffice for him to do this, and to pay the indebtedness of the estate to himself: That he took the state bond for three thous- and dollars last mentioned into his own possession; That subsequently to the occurrence of the foregoing facts, the respondent Christopher, petitioned the surrogate for an accounting by the executor: That such accounting was had, and upon it the surrogate erred in admitting evidence of the statements of the testator made to third persons in the absence of the present executor, to disprove the latter’s ownership of the state bond, and in rejecting writings by the testator in his lifetime to show that he who is the present executor did own it: That the surrogate erred in refusing to entertain the executor’s claim against the estate for the two thousand dollars, and for notes signed by the testator in his favor for the sum of nine hundred and fifty dollars : That the respondents, who claim an interest in the estate, answer, &c.
    The surrogate had decided, all the parties in interest being before him, that the state bond belonged to the testator and was registered in the present executor’s name to evade the taxation thereof; and had declined to entertain jurisdiction of the executor’s claim against the estate, saying that his remedy therefor was by action in another court.
    The answer charged the wrongful appropriation of the personal property of the estate by the executor to bis own use ; that the acceptance of payment of the legacies made subject to a rebate was induced by his misrepresentation ; that the decree of the surrogate was proper.
    
      Geo. W. fvager, for the appellant.
    The objections taken to the introduction of the writings by the testator in his lifetime, to show that the present executor was the owner of the state bond were not tenable ; and all other objections are waived by taking untentable ones (Dunham v. Simmons, 3 Hill, 609; Blossom v. Barrett, 37 N. Y., 434; Fountain v. Pettee, 38 Id., 184). If respondents could give verbal declarations of deceased in his own interest, his written declarations were admissible. Declarations of deceased, verbal or written, against his interest are always admissible (1 Phill. Ev., 255 ; 1 Greenl. Ev., 213; Hicks v. Gildersleeve, 4 Abb. Pr., 1; Gibney v. Marchay, 34 N. Y., 301). The finding of the surrogate that he had no jurisdiction of the claim against the estate was erroneous (Dayton on Surr., 478 ; Williams v. Purdy, 6 Paige, 168; Gardner v. Gardner, 7 Id., 112 ; Jumel v. Jumel, 7 Id., 591; Payne v. Mathews, 6 Id., 20 ; citing also the authorities referred to in the opionion below).
    
      Andrew Eallon, for the respondents.
    The surrogate had authority to adjudicate as to the state bond (2 JR.. 8., 220, § 1, subd. 3). And to enforce the payment of the legacies (2 JR. 8., 220, § 1, subds. 4, 6). The written admissions by the testator were properly excluded as occurring between the executor and the testator. The surrogate properly refused to pass upon the disputed claims of the executor (Andrews v. Wallege, 17 How. Pr., 263; Tucker v. Tucker, 4 Abb. Ct. App. Dec., 428).
   By the Cotjrt.

Tappeh, J.

[after stating the-facts].—Inasmuch as an executor can not sue himself in an action at law, it is provided by statute, that no part of the property of the deceased shall bé retained by an executor or administrator in satisfaction of his own debt or claim, until it shall have been proved to and allowed by the surrogate ; and the proof of such debt or claim may be made on the service and return of a citation for that purpose, directed to the proper persons, or on the final accounting (2 JR. 8., 88, 4th ed. p„ 274); and this course is the general practice (Dayton's Surrogates, 359; Moore v. Moore, 21 How. Pr., 211; Robinson v. Raynor, 28 N. Y., 494, rev’g 36 Barb., 198; Matter of Cunningham, 1 Hun. Supm. Ct. 214).

This proceeding is not to be confounded with the claim of a creditor disputed by the executor, where such creditor is not either an executor or administrator ; in such a case the surrogate has not jurisdiction (Andrews v. Wallege, 17 How. Pr., 263).

But where an executor or administrator is a creditor of the deceased, the statute expressly authorizes proof of his claim to, and its examination by the surrogate, and he is not permitted to retain any part of the prop • erty of the deceased in satisfaction thereof, without such proceedings.

The surrogate on passing upon the claim of the executor to the three thousand dollar bond, admitted the testimony of a party to the proceeding, being the testator’s widow, who testified to her husband’s declaration of ownership in himself; the executor thereupon offered two written declarations having the testator’s signature, and tending to sustain the executor’s title to the bond, and these, on objection, were excluded.

We are not now prepared to say how far they are affected or excluded by section 399 of the Oode ; but if a party in interest testifies to declarations of a de-. ceased person, the prohibition contained in that section does not apply, and counter declarations are admissible.

Inasmuch as the case must go back to the surrogate to take proof of a claim offered by the executor as a creditor, the whole proceeding will then be before him, and any error in receiving or rejecting testimony can be corrected.

Decree reversed, and proceedings remitted to surrogate, costs to abide event. 
      
       Present, Babnabd, P. J., Aim Tappen, J. (Donohue, J., sat at the argument, but was not present when the opinion was handed down.)
     