
    In the Matter of the Application of Isaac E. Pye and Others, Respondents, for the Revocation of Letters Testamentary Issued to Erastus Van Houten, Appellant, upon the Estate of Edward G. Van Houten, Deceased. No. 1.
    ' A specific legacy to an executor—he must, hold it to meet the claims of creditors — for a failure to do so he is in contempt—a fine of the inventory value, imposed.
    
    Personal property, specifically bequeathed to an executor, is subject to application upon the debts of the testator’s estate where there is a deficiency of assets. The executor cannot, by his assent, transfer the title to the legacy to . himself as an individual to the detriment of the rights of the creditors, and for a failure to account therefor, when ordered to do so by the Surrogate's Court, he is guilty of a contempt of court within sections 2481 and 2555, subdivision 4, of the Code of Civil Procedure, and is properly fined the appraised value of the property covered by his specific legacy.
    
      A fine of this character is for the benefit of the creditors, and when it has been paid by the executor he will, under the provisions of section 2284 of the Code of Civil Procedure, be entitled to credit for its amount.
    Appeal by Erastus Van Houten from an order of the Surrogate’s Court of Rockland county, entered in the office bf said Surrogate’s Court on the 3d day of February, 1897, adjudging him guilty of contempt and fining him $3,134.94.
    
      G-a/t'rett Z. Snider, for the appellant.
    
      John M. Perry, for the respondents.
   Bradley, J. :

In this proceeding, instituted in behalf of the creditors of the appellant’s testator to revoke the letters testamentary issued to him, the order was made to that effect, and it was further ordered that “ he pay and deliver over to Anna L. Van Houten and Della Van Houten, executrices of Edward G. Van Honten, deceased, or their representatives, all money and property or the proceeds thereof which belonged to the estate of said deceased, or which came into ■ his possession as executor, and all property belonging' to the estate of said deceased now in his possession and under his control, and particularly ” the goods and chattels which belonged to the testator in his lifetime, and were used in the livery stable business, and that he (Erastus Van Houten) is enjoined from exercising any control over or interfering with any of the property belonging to, the estate.

This order was violated by him in that he refused to deliver- such goods and chattels used in the livery stable business to, those executrices or their representatives, and did not desist from exercising control over such property. And, thereupon, on a further application to the Surrogate’s Court, upon which he was heard, the order appealed from was made, whereby he was adjudged guilty of contempt and fined the sum of $3,134.94, that being about the appraised value of such goods and chattels in the livery business. The order-revoking the letters testamentary issued to the appellant, and directing him to deliver the personal property of the estate to the two executrices, to whom letters testamentary had also issued, and enjoining him from exercising control over such property, was within the jurisdiction of the Surrogate’s Court to make, and such order was made in this proceeding, duly instituted and conducted. It was, therefore, the duty of the appellant to observe and obey that order. And when he refused to do so and violated it in a substantial respect, the motion that he be judicially charged as in contempt and punished was also duly made and conducted to the conclusion before mentioned. (Code Civ., Proc. §§ 2481, 2555, subd. 4.) . The motion to charge the appellant with contempt having been regularly conducted, presented for consideration the question only, whether the court had jurisdiction to make the order with which his disobedience was charged and established in such manner as to subject him to that imputation. (Matter, etc., of Snyder, 103 N. Y. 178 ; People ex rel. Cauffman v. Van Buren, 136 id. 252, 255.) It is not claimed that there was any want of jurisdiction of the Surrogate’s Court to make the order, or that there was any. error in making it, if the chattels in the livery business left by the testator were assets of the estate at the time the order directing the appellant to hand them over to his co-executrices was made. But it is contended that, inasmuch as those articles of property were bequeathed to him by the will of the testator, they, by virtue of the bequest,' became his property when he took them into his possession and proceeded,- as he did, to use them in conducting the business. The bequest to him was, of a specific legacy. As a general' rule, such a legacy vests on the death of the testator, and the legatee' is entitled to the income and profits that proceed from it. (Kirby v. Potter, 4 Ves. 748; 3 Pom. Eq. Juris. § 1130.) And when the executor assents to it the legacy . ceases to be part of the testator’s assets. (2 Wms. Exrs. [5th Am. ed.] m. p. 1242; Hudson v. Reeve, 1 Barb. 89.) But in case of deficiency .of assets to pay the debts, tlie executor cannot prudently or properly give such assent, and the- specific legacy is subject to application thereon in behalf of creditors. And as such was the situation of the estate in question, the appellant, as executor, could not by his assent divest himself of the property in that relation in behalf of himself individually. (Spode v. Smith, 3 Russ. 511.) And although by reason of the bequest to him he may not be chargeable with the income from the property, he must as executor account for the property as it" came to him on the death of the testator and as of that time. It would seem to follow that, for the purposes of'the administration of the estate, this property must be treated as part of the assets of the estate of the deceased, and, as such, subject to the jurisdiction of the probate court; and, consequently, the executor in respect to it is also subject to the order of that court. In that view the appellant, by his refusal to obey the mandate in question, became chargeable with contempt and with the consequences which followed. The fine was imposed in behalf, and for the benefit, of the creditors. When paid, the appellant as executor will be entitled to credit for the amount of it. (Code Civ, Proc. § 2284.)

The order should be affirmed.

All concurred.

Order adjudging appellant guilty of contempt affirmed, with ten dollars costs and disbursements.  