
    
      In re Tobin.
    
      (Surrogate's Court, Orange County.
    
    December 4, 1890.)
    Accounting by Executors—Personal Liability.
    On accounting by an executor it appeared that testator left a legacy of $1,000 to his wife, and the balance of his estate to his brother; that the wife’s legacy had been paid to her; that for many years there had existed an account in a savings bank in the names of deceased and his wife, and that from this account deceased drew $500, and his wife $2,333.32 during his life, and the balance immediately after his death. Held, that the executor would be directed to pay over to the residuary legatee the $150 statutory allowance to the widow, which was the only money still due her from the estate, and that he should assign to him any interest of testator in the bank-account, but that the executor would not be charged personally therewith, though he had paid over the legacy to the widow without collecting it.
    Proceedings for the judicial settlement of the accounts of William Tobin, deceased. Deceased left a legacy of $1,000 to Catharine Tobin, his wife, and James Tobin was given the balance of his personal property. For many years prior to the death of deceased there had existed in a certain savings bank an account in the names of himself and wife. From this, during his life-time, he had drawn $500, and his wife $2,333.32. Shortly after his death she drew the balance, amounting to $402.41.
    
      W. C. Anthony, for executors. A. H. F. Seeger, for Catharine Tobin. J. G. Graham, Jr., for James Tobin.
   Coleman, S.

Objection is made upon this accounting by James Tobin that the executors have failed to account for any part of the bank-account, and urge that their account should be surcharged with the amount of the testator’s interest in the account, or that such amount be deducted on this accounting from the amount of the legacy to Catharine Tobin, for which they ask to be credited, or from any other moneys she may be entitled to from this estate. The will disposes of the testator’s whole personal estate. She therefore takes no distributive interest as widow, (Rev. St. p. 2565, § 75, 8th Ed.,) notwithstanding the fact that the legacy to her is not mentioned to be in lieu of her legal rights. She is, however, entitled to receive the $150 given her by statute, (Sheldon v. Bliss, 8 N. Y. 31; Vedder v. Saxton, 46 Barb. 188,) which appears not to have been paid to her. As to the bank-account, there is no testimony showing how much of the account belonged to each, and the presumption is that at least one-half of it belonged to the husband. Gelster v. Bank, (Gen. Term, 4th Dept.) 17 Wkly. Dig. 137. Catharine had the legal right to draw the money from the bank, and she holds, as trustee, any part of it which belongs to the estate of the deceased. Mulcahey v. Bank, 89 N. Y. 435; Gaffney v. Public Adm'r, 4 Dem. Sur. 223. This proceeding is for a judicial settlement, and in it the rights of the legatees under the will must be determined by this court, which has jurisdiction to settle and adjust the conflicting rights and interests in and to the fund held, or which ought to be held, by the executors for distribution. Riggs v. Cragg, 89 N. Y. 479, 491. In the case of Rogers v. Murdock, 45 Hun, 33, 9 N. Y. St. Rep. 660, it was held that the surrogate, on a judicial settlement, could charge an executor with the amount due upon certain notes made by a legatee to the testator, and deduct this amount from the amount of the legacy, although the executor could not have maintained an action upon the notes, more than six years having elapsed between the making of the notes and the death of the testator. James Tobin and Catharine Tobin are both parties to this proceeding, and I am of opinion that this court should, so far as it has power to do so, settle their respective rights in the estate, including the bank-account. The only money still unpaid Catharine Tobin is the $150 mentioned. At least this amount should be charged against the executors as part of the half of the bank-account held by Catharine Tobin in trust for this estate, and the amount thus charged against the executors be by them paid to James Tobin, as residuary legatee, and Catharine’s claim thereto thereby extinguished. As to any further interest the said deceased had in said bank-account this court has no power to make a decree directing Catharine Tobin to pay over. Although the executors have not collected from Catharine Tobin the interest of the deceased in the bank-account, and have paid to her the legacy of $1,000, without retaining such interest therefrom, still I do not think the evidence in the case sufficient to charge them personally therefor; but the decree should provide that the executors shall execute an assignment to James Tobin of all such interest, to be held by him to his own use.  