
    In the Matter of the Judicial Settlement of the Compulsory Account of Anna T. Walton, as Executrix, etc., of Patrick Walton, Deceased, Executor and Trustee under the Will of James Hernon, Deceased, Appellant. Annie Conley, Individually and as Administratrix, etc., of Mary Conley, Deceased, and Others, Respondents.
    First Department,
    March 23, 1906.
    Executors and administrators — power of surrogate to compel executrix of deceased executor to account and pay oyer — éxecutrix of executor only liable for sums received from deceased executor—when such executrix not personally liable for costs.
    The estate of a deceased executor cannot be charged with the amount of uncol_ lected debts and judgments owing to‘the estate of the-testator.
    A surrogate under the authority of section 3606 of the Code'of Civil Procedure' has power ttvrequire the executrix of a deceased executor to account for -the acts and doings of the decedent as to trust property which came into his possession and may compel such executrix of a deceased executor to deliver ..over any of the trust property coming into her possession or under her control, but only that which comes under her control. ■ ,
    Hence, when there is no allegation in the petition or finding in a proceeding to compel such executrix to- account that any trust property held by the deceased "executor came into her possession, no decree can he entered directing her to páy over to herself any property not received as administratrix with theyvill annexed of . the testator, _ -
    Neither is such exdcutrix of a deceased executor personally liable for the costs óf a proceeding to compel her to account when she has not been guilty of mis- . appropriation of funds, or'of any wrongdoing, although- the deceased executor was guilty of misappropriating the property, of the estate.
    Appeal by Anna T. Walton, individually and as executrix, etc., from a decree of the-Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 7th day of June, 1904.
    
      George Hahn, for the appellant.
    
      Charles C. Sanders, for the respondents.
   Ingraham, J.:

It appeared, that one James Hernon died, leaving a last will and testament which was admitted to probate Eebruary 19, 1895, appointing one Patrick Walton executor, and-letters testamentary Were. - issued to him? lie taking possession, of the estate, and that Patrick Walton died on August 11, 1897, leaving a last will and testament which was admitted to probate on'September 8,1897, by which Anna T. Walton, his wife, was appointed his executrix. By the will of James Hernon he left his residuary estate to his two sisters, Mary Conley and "Anna T. Walton. Mary Conley died in July, 1901. Letters of administration were issued upon her estate to Annie Conley, one of the respondents. As such administratrix she became entitled to the legacy given and bequeathed by the will of James Hernon to Mary Conley. On September 17, 1901, this proceeding was instituted to compel Anna T. Walton, executrix of Patrick Walton, to account for the property of James Hernon which, came into his hands. There ismo allegation in the petition that any assets belonging to the estate of James Hernon had come into the possession of Anna T. Walton, as executrix of Patrick Walton.

Upon this petition the surrogate granted a decree'requiring Anna T. Walton, as executrix of Patrick Walton, deceased, to render and judicially settle the accounts of Patrick Walton as executor of James Hernon, and also to settle her own account as executrix of the will of Patrick Walton, deceased, in relation to the estate of James Hernon, deceased. In pursuance of this decree Anna •T. Walton filed an account from which it appears that personal property aggregating $13,607.29 came into the possession of Patrick Walton, as executor of James Hernon, and that of that amount there were judgments recovered by James Hernon, but which were unpaid and uncollectible, aggregating $4,423.36; that the said Patrick Walton paid funeral expenses and debts of the decedent aggregating $6,440.59, and that there had been paid to legatees of the deceased the sum of $1,541.65. It was further stated that Patrick Walton, the deceased executor, left no estate either real or personal, and that Anna T. Walton, as his executrix, had never received any property from hiuij that at the time of the death of said Patrick Walton there was in banks to the credit of said. James Hernon the sum of $665.97, and that this amount had been received by Anna T. Walton as administratrix with the will annexed, and was the only amount that the executor of Patrick Walton received of the estate of James Hernon.

Objections were filed to this account, whereupon the surrogate appointed a referee to hear and determine all the questions arising upon the settlement of the said account. The referee found that Patrick Walton, as executor and trustee under the will of James Hernon, opened three bank accounts in which there was deposited an aggregate of $13,595.35; that at the death of Patrick Walton there was on deposit in these three banks to the credit of the estate of James Hernon . $66.9.13, which -was- subsequent to the death of Patrick Walton received by Anna T. Walton as the administratrix with the will annexed'of James Hernon, deceased. , The referee further found that in addition to the amounts thus.deposited in these banks to. the credit of the estate of James Hernon, his executor, Patrick Walton, had received various sums of money which, with'the amount so deposited, aggregated $15,244.62; that in addition to that amount Anna T. Walton, as executrix of Patrick Walton,' deceased, had received of the estate of James Hernon the sum of $181.09, making an aggregate sum for which the estate of Patrick Walton is chargeable of $15,425.71. The referee further reported tliat Mary Conley and Anna T. Walton were each entitled to one-half of-the residuary estate; that payments made out of the residuary estate to Anna T. Walton exceeded payments made thereout to Mary Conléy by at least the sum of $2,785.60, and that to equalize the payments shown to have been made to-Anna-T, Walton the said sum of $2,785.60 must be paid to the estate of Mary Conley, deceased, before any further payment is made to Anna T. Walton and before division-and distribution of the estate is made, and as a. conclusion of law that the estate of Patrick Walton, as executor and trustee -of James Hernon, deceased, and the estate of said Walton is chargeable, with the sum of $30,034.62. In this ..amount is included the uncollected judgments, uncollected boob accounts and unpaid notes amounting to $12,748.29 which were never received by Patrick Walton as executor of James Her-non, and never received by Anna T. Walton as executrix of Patrick Walton.

It would seem that there was no justification for charging these amounts of uncollected debts and judgments against the estate of Patrick Walton, deceased. - He never received them, either as executor or otherwise, and on the appointment of the administrator with the will annexed of James Hernon, deceased, these uncollooted, judgments and book accounts and notes vested in such administratrix with the will annexed; and this amount should, therefore, be deducted from the amount for which the estate of Patrick Walton, as executor, is chargeable, leaving a balance chargeable against the estate of Patrick Walton of $17,286.33. The referee then found that Patrick Walton was entitled to credits aggregating $9,791.09, which would leave a balance chargeable against the estate of Patrick Walton in favor of the estate of James Hernon of $7,495.24.

Exceptions were filed to this report and it was modified by the surrogate by deducting $181.09 from the amount, which would leave the amount-for which the estate of Patrick Walton is chargeable at $7,314.13. The surrogate in his opinion states that it does not appear that any of the assets of James Hernon have come into the possession of Anna T. Walton as executrix of the will of Patrick Walton, the deceased executor of James Hernon;” that “the legal representative of the estate of James Hernon is Anna T. Walton, as administratrix of his estate with the will annexed;” that “ the decree must, therefore, require her as the executrix of the will of Patrick Walton to pay the amount adjudged to herself as such administratrix, &c., of James Hernon;” and that “no distribution can be had of any amount thus recovered until Mrs. Walton shall account as administratrix, &c,, of James Hernon.” The surrogate further directed that the costs of the proceeding, other than the disbursements for the stenographer, are to be charged against Anna T. Walton personally, and a decree wás' entered in accordance with this conclusion, and from that decree Anna T. Walton, as executrix and individually, appeals.

The jurisdiction of the surrogate in this proceeding is based upon section 2606 of the Code of Civil Procedure. That section provides that Where an executor * * * dies, the Surrogate’s Court has the same jurisdiction upon the petition of his successor or of a surviving executor, administrator or guardian, or of a creditor of person interested in the estate * * * • to compel the executor or administrator of the decedent to account, which it would have against the decedent if his letters have been revoked by a surrogate’s decree. * * * On a petition filed either by or against an exéeutor or administrator of a deceased executor * * * the successor of such decedent and all persons who would be necessary, parties to a proceeding commenced by such decedent for a judicial settlement.of his accounts shall be cited and required to attend such settlement. * * * The Surrogate’s Court has also jurisdiction 'to compel the executor or administrator or successor of any decedent at anytime to deliver over any of the trust property which has come, to his possession or is under his control, and if the same is delivered over after a decree tlie court must allow such credit upon the decree as justice requires.” By this section the surrogate is given power to require the executor of a deceased ex'ecntof to account for the acts and doings of the decedent and for the trust property which has come into the possession of’the decedent, and may at the same time compel the executor or administrator of a deceased executor to deli ver over any of the trust property which' has come into his possession or under his control.

It seems to- me that on an accounting under this section the surro- ■ gate Can determine the condition of the account as between the decedent- and the estate of his deceased executor!, and as this adjudication thus settling the accounts is valid the decree of tlie -surrogate should be modified by fixing the amount at $7,314.13 as before indicated. • .

The surrogate has also jurisdiction to compel the executor of the deceased executor to deliver over any of the • trust property which has come to his possession or is under his control, but he can only require the executor of the deceased executor to pay over to his successors money or property which has come into his possession or under his control.. As there was no allegation in the petition that any m'oney. had come into the possession .of Anna T. Walton, as executrix of Patrick Walton-that belonged to the estate of- James Hernon, and as there was no finding that there was any such property, there could be no decree directing the appellant as executrix, of the estate of Patrick Walton to pay to herself as administratrix with the will annexed of Patrick Walton any money, or to deliver any property. This portion of the decree, therefore, which directs Anna T. Walton, as executrix of Patrick Walton, to pay over or deliver. any property to herself as administratrix of the estate of James piernón should be stricken out.

The decree also requires that the costs of this proceeding be paid by Anna T. Walton personally. I do not find that there was any justification for this provision of the decree. Anna T. Walton has been guilty of no misappropriation of funds and of no wrongdoing so far as is disclosed by this record. She has received no property as executrix of Patrick Walton of any kind. She is chargeable with no neglect or violation of duty in relation to the estate of James Hernon, or in relation to. the estate of Patrick Walton so far as is disclosed by this record. The fact that her husband was a defaulter, or that he misappropriated the property of this estate is certainly no reason for charging her personally with the costs of this proceeding.

I think, therefore, the judgment should be modified by striking out the provision making these costs payable by Anna T. Walton personally and by providing that they should be payable by the estate of Patrick Walton.

As this disposed of all the questions presented on this appeal that require discussion, the decree is modified as before indicated, and as modified affirmed, without costs of this appeal.

O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.

Decree'modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice. 
      
      
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