
    Mariam Brown, Appellant, v. Lillian Delphine Wheeler, Individually and as Executrix and Trustee of the Last Will and Testament of Artemas Bassett, Deceased, Respondent.
    
      Surrogate’$ decree — it is a bar to an action to liare decla/red void a trust provided for by it.
    
    A decree, made on the accounting of an executrix, directing her to retain in her hands a certain sum and pay the income thereof to a particular person during the latter’s life, and after her death to a religious corporation according to the terms of the will, is a bar to a subsequent action by the life beneficiary to have the gift over to the religious corporation declared void, upon the ground that the testator died within two months after the making of the will, notwithstanding the fact that the question as to the validity of the gift over was not raised on the accounting.
    Appeal by the plaintiff, Mariam Brown, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the ceunty of Clinton on the 13th day of December, 1899, upon the decision of the court, rendered after a trial at the Clinton Trial Term before the court without a jury, dismissing the complaint upon the merits.
    
      S. L. Wheeler, for the appellant.
    
      Shedden & Vert, for the respondent.
   Merwin, J.:

On the 6th day of January, 1894, Artemas Bassett, then a resident of West Chazy, in the county of Clinton, died, leaving a last will and testament, which was duly admitted to probate on February 12, 1894, and letters testamentary issued to the defendant, Lillian Delphine Wheeler, the executrix named in the will. The plaintiff and the defendant were the sole heirs and next of kin of the decedent. The will was made December 28,1893. One of the bequests in the will was as follows : “ I give my daughter, Mariam Brown, use of $1,000 during her life, and after her death I give the use of it to the Wesleyan Methodist Church at West Chazy Corners, N„ Y.” It was subsequently provided in the will that “ if the said Wesleyan Methodist Church of West Chazy, N. Y., ceases to exist, then I give the said $1,000 to the said Wesleyan Methodist Parent Society, located at Syracuse, N. Y.”

The personal estate which came into the hands of the executrix exceeded the sum of $1,000 over and above the debts and expenses. On the 25tli of March, 1895, the executrix had in the Surrogate’s Court a judicial settlement of her accounts. To this the defendant was duly cited and appeared in person and by attorney. In the decree that was entered, at the above-mentioned date, it is recited that a citation had been issued, pursuant to the statute, to all persons interested in the estate of the deceased, and that, on the return thereof, satisfactory evidence by affidavit was produced, showing due service thereof on the heirs and next of kin and legatees of the deceased. The decree contained the usual provisions, finally settling and adjusting the accounts of the executrix and determining the balance in her hands. The executrix was then directed “ to retain in her hands $1,000 of said balance and invest and keep the same invested and pay over the income thereof to Mariam Brown during her life, and, after her death, to Wesleyan Methodist Church at West Chazy, N. Y., according to the provisions of testator’s will.” Pursuant to this decree the defendant did invest the $1,000, and has since kept the same invested and has paid the income to the plaintiff.

This action was brought in June, 1899, to recover of the defendant the one-half of the $1,000 legacy upon the theory that, as to the church, the legacy was void, as the testator died within two months after the making of the will, and, therefore, the plaintiff, as one of the two next of kin, there being no residuary bequest, took the onclialf thereof absolutely. As to the other half, the plaintiff asked the court to direct that it be paid to her as the life tenant ujjon her giving security for its return at her death. The Wesleyan Methodist Church is not a party to the action. It is a religious corporation incorporated under chapter 319 of the Laws of 1848.

The defendant is holding and managing the fund in pursuance of the decree of the Surrogate’s Court. That has not been appealed from or set aside. There is evidence that the plaintiff consented to the making of the decree. If the Surrogate’s Court had jurisdiction to make the decree, it is a bar to the plaintiff’s action. The plaintiff seeks here relief inconsistent with the decree.

The decree was made in a proceeding, instituted by the executrix, to obtain a judicial settlement in pursuance of section 2726 et seq. of the Code of Civil Procedure. In regard to such a proceeding, it is pro Added by section 2743, as it Avas at the date of the decree, as follows:

“ Where an account is judicially settled, as prescribed in this article, and any part'of the estate remains and is ready to be distributed to 'the creditors, legatees, next of kin, husband or wife of the decedent or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. If any person Avho is a necessary party for that purpose has not been cited or has not appeared, a supplemental citation must be-issued, as prescribed in section two thousand seven hundred and twenty-seven of this act. Where the validity of a debt., claim or distributive share is not disputed or has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same. With respect to the matters enumerated in this section, the decree is conclusive upon each party to the special proceeding who was duly cited or appeared, and upon every person deriving title from such a party.”

Under this section, as the fund in question was ascertained and was ready for distribution to the legatees or next of kin, the court Avas required to direct its payment and distribution to the persons entitled to it according to their respective rights. The validity of the bequest to the church was not disjiuted. The court had poiver to direct payment and to determine all questions concerning the same, and the decree Avas conclusive on all who appeared or were duly cited. All parties in interest Avere duly cited.

In Garlock v. Vandevort (128 N. Y. 374) it is said that a surrogate, in a proceeding before him having for its object the settlement of an executor’s accounts and the obtaining of a decree directing the distribution of the fund in his hands, when all the parties in interest are present, has authority to construe the provisions of the will and determine their meaning and Aridity, whenever necessary, in order to make his decree as to distribution.

This view is supported by the cases of Riggs v. Cragg (89 N. Y. 479); Matter of Verplanck (91 id. 439) and Purdy v. Hayt (92 id. 446). In the Garlock case it was held that the capacity of a party to be a legatee within a certain specification in the will as. to residence could be determined by the Surrogate’s Court in proceedings for a judicial settlement. So it has been held that the question of legitimacy of children claiming to be distributees could be determined (Matter of Larumie, 24 N. Y. St. Repr. 702) and the capacity of an institution to take a legacy. (Matter of York, 1 How. Pr. [N. S.] 16. See, also, Redf. Surr. [5th ed.] 783.)

In Matter of Randall (152 N. Y. 508), where the same distributive share was claimed by two persons, one by original title and the other by an assignment apparently valid, it was held that the Surrogate’s Court did not have the power to try the question of the validity of the assignment. That case is not applicable here. There was no question before the surrogate as to the validity of any deed or assignment. (See Garlock case.)

There is not, as it seems to me, any doubt about the jurisdiction of the Surrogate’s Court to make the decree. The power to determine who are the proper distributees is incident to the power to make distribution, unless such power is limited by some express, provision of statute.

It is hardly necessary to say that we cannot here review the decree of the Surrogate’s Court. Nor does it appear that since the decree was made anything has transpired that would call upon this, court to interfere with the custody of the fund.

The complaint was, we think, properly dismissed.

All concurred.

Judgment affirmed, with costs.  