
    In the Matter of the Estate of Peter Goetz, Deceased. Frederick Goetz, Individually and as Administrator with the Will Annexed of Peter Goetz, Deceased, Appellant; Willis B. Dowd, Temporary Administrator with the Will Annexed of Peter Goetz, Deceased, Respondent.
    First Department,
    June 7, 1907.
    Executors and administrators — accounting of temporary administrator to administrator with the will annexed—when profits of réal estate should be paid into court..
    The appointment of an administrator with the will annexed terminates The . authority of a temporary administrator and. the latter must 'account, in the Surrogate’s Court on the petition of the ney administrator and will be compelled to turn over personal property in his possession. •
    But he'cannot be compelled by the new administrator to turnover the rents and profits of real estate which he was authorized to collect pursuant to the provisions of ■ section 2675 of the Code of Civil Procedure; such proceeds he should be required to pay into court, leaving the question as to who is entitled thereto in .abeyance. ■ He cannot attack the validity, of provisions of the will 'disposing of realty or" bring action for that purpose.
    Whether tile surrogate shall require a temporary administrator in possession of rents-and'profits of land to pay the same into court, or to the person, entitled ■ thereto, or shall allow the question to rest until the detérmination'of the validity of the will in an action in the SupremeCourt, is a matter resting in his discretion.
    Appeal by Frederick Goetz, individtially and as-- administrator witli the will annexed of Peter Goetz, deceased, from a decree of the Surrogate’s Court' of the county of Mew York, entered in said Surrogate’s Court, on the 20th day of February, 1907, dismissing his petition to require Willis B. Dowd, as temporary administrator with the will annexed of said deceased, to render and settle his • accounts as such administrator.. ' . ■
    
      William H. Shepard [Evarts L. Prentiss with him on the brief],for the appellant.
    
      William W. Mumford, for the respondent.
   Laughlin, J.:

FTo executor was appointed by the will of the decedent. Pending the application for the probate of' the will, the temporary administrator with the will annexed was appointed on the 20th day of December, 1905. The petitioner is the heir at law and next of kin of the decedent. He was.appointed administrator on the 17th day of August, 1906. The decedent left a large amount of personal estate, and two parcels of real estate situáted in the county of New York. Pursuant to the provisions of section 2675 of the Code of Civil Procedure the surrogate, in appointing the temporary administrator, duly authorized him to collect the rents of the real estate of the decedent. The appointment of the petitioner as administrator with the will annexed terminated the authority of the temporary administrator. (Code Civ. Proc. § 2670; Matter of Lewis, 17 Wkly. Dig. 311; Matter of Choate, 105 App. Div. 356; Matter of Storm, 84 id. 552.) The temporary administrator collected rents on account of the real estate, aggregating the sum of $2,083.30, which accrued • subsequent to the death of the testator. Of this amount he disbursed, by order of the Surrogate’s Court, likewise made pursuant to the provisions of section 2675 of the Code of Civil Procedure, the sum of $781.95, leaving a balance of $1,301.35 in his hands. The temporary administrator also had in his hands personal property of the estate of the value of $20,000. He interposed an answer to the petition for the accounting in which he alleged, in. substance, that he is advised that the residuary devise, under which these parcels of real estate are devised, if at all, is invalid, in that an attempt to devise the same. for charitable purposes was made, which cannot be rendered effective tinless the Supreme Court exercises the authority conferred upon it by chapter 701 of 'the Laws of 1893, with respect to carrying into effect charitable trusts where there is indefiniteness or uncertainty as to the beneficiary, or where no trustee has been appointed to execute the trust, and that, therefore, he had brought an action in the Supreme Court for the construction of the will, with a view to determining who is entitled to. the rents of the real estate, and also for an accounting as to the personalty.

The learned counsel for the appellant very properly questions the sufficiency of tire answer, upon the grounds that it fails ■ to show that the action in the Supreme Court was commenced before this proceeding was instituted, in that it fails to show that the summons had been served-upon any defendant, and also fails to show that the action has been commenced as against the petitioner'. (See. Hart v. Hart, 86 App. Div. 236.) But since we are of opinion that the pendency of an action in the Supreme Court brought by the respondent for such purpose is no defense to an application' to require him to account in the Surrogate’s Court, our decision need not rest upon technical grounds. ' The learned surrogate dismissed the proceeding upon the-theory that the Supreme Court had acquired and assumed jurisdiction, not only over the disposition of the rents, but for the purpose of a general accounting as to the personalty.

With respect to the general, accounting, no special facts or circumstances are shown .for the exercise of jurisdiction by .the Supreme Court. It is well settled that the Surrogate’s Court is .not ■ only the statutory tribunal for accountings by administrators'and executors who are there appointéd, and give or may be required to give bonds' to.account to that court (Code Civ. Proc. § 2664), but that it is the appropriate tribunal, and that while the Supreme Court has concurrent jurisdiction it will not exercise its jurisdiction where the Surrogate’s Court has full and complete jurisdiction in the premises. (Bushe v. Wright, 118 App. Div. 320.) As already observed, the temporary administrator’s authority is- at an end, but he has not accounted, and it is his duty to accoiint fo the Surrogate’s Court which appointed him, and he will then be directed to turn over the personal property in his hands to the petitioner, who is entitled to the possession and to make distribution. - (Code Civ. Proc. §-2126; Matter of Philp, 29 Misc. Rep. 263; Redf. Surr. Pr. [6th ed.] § 422.) I am' of opinion, however, .that the petitioner is not entitled to have the temporary administrator account to him for or pay over to .him the rents of the realty. In many of the States, apart from any authority conferred by the will or by the consent of the heirs or the devisees, the executor or administrator is authorized to take possession of the real estate and collect the rents, pending the settlement of the estate, for the protection of-the rights of creditors, to the end that should it be necessary to draw on the real estate to pay the debts, the rents thus collected may render' a sale, of the realty unnecessary, and it would insure .the appropriation of all the real estate to the payment of the claims of creditors, should that become'necessary. (Kline v. Moulton, 11 Mich. 370; Washington v. Black, 83 Cal. 290; Cox v. Ingleston, 30 Vt. 258.) In this State, however, that rule does not prevail, and there is no statute conferring upon' administrators or executors authority to take possession of the realty and collect the rents with a view to appropriating the same to the payment of the debts of the decedent. Such was not the purpose of the Legislature in enacting section 13 of chapter 359 of the Laws of 1870, from which section 2675 of the Code of Civil Procedure originated. That chapter related to the Surrogate’s Court in the county of New York, and section 13 provided that where the probate of a will relating to real estate was contested in the Surrogate’s Court in the county of New York, the court should have power “ to appoint some suitable person as receiver of such real estate pending the contest. Such receiver shall have and possess the same power and authority and shall be required to give the same security as if appointed by any other court of competent jurisdiction.” Throop’s note to section 267.5, and to the article in which the same is contained, shows in effect that the section is founded on the statute of 1870, and that its purpose is the same, it being merely extended throughout the State, and the title of the office changed and authority conferred to make necessary disbursements to preserve the property from waste. No authority to collect rents is conferred upon an executor or administrator. It is manifest, therefore, that what the Legislature had in mind in enacting this section conferring such authority upon a temporary administrator was not to impound the rents with a view to apph ing them to the payment of the decedent’s debts, should that become necessary, but to have the rents collected and preserved for the persons entitled thereto during the contest over and probate of a will where conflicting claims to the rents were or might be made by heirs and devisees, and where the tenants might, on that account, refuse to pay, and no one might take sufficient interest or assume the responsibility of keeping the premises in repair. It is plain, therefore, I think, that the powers and duties of the temporary administrator with respect to the personal property and with respect to the realty are separate and distinct, as is also his duty with respect to accounting therefor. It is evident that as temporary administrator the respondent has no standing to maintain an action for the construction of the will. He has no authority-to distribute the estate, but only to preserve it and account therefor to the court by which he was appointed, excepting that he may pay out rents 'as directed- by the surrogate under the statute, as already .seen. (Redf. Surr. Pr. [6th ed.] § 412; Schouler Exrs. & Admrs. [2d ed.] §§ 135, 265; Adair v. Shaw, 1 Sch. & Lef. [Irish R.] 254; Powell v. Demming, 22 Hun, 235.) The only possible theory upon which he could'maintain an action in tile. Supreme Court is to determine conflicting claims to this-fund in his hands, consisting of the rents col-. lected by him, which would be an- action in the nature of inter-pleader. (Morse v. Stearns, 131 Mass. 389.) It is evident that he should not be permitted to maintain such an action if he can be discharged -from liability and the obligation of his surety be can-... celed by accounting to- the Surrogate’s Court and paying the fund' into court or to the party entitled thereto. . It does not appear that any conflicting claims have been made to this fund, nor is it apparent that he would not be protected by paying the fund over to the petitioner. If the residuary • clause of the will be-invalid, then-the petitioner is entitled to the real estate and all of the rents, issues- and profits thereof, and if the charitable devise be sustained, still the petitioner takes -one-lialf the,realty as the' heir of -his . father, and lie and his wife become entitled to all of the income for life, and he becomes a tenant in common with the béneficiary of the .devisee under the will, which, although in-terms embracing the entire residuary estate, is limited to one-half by the provisions of chapter 360 of the.Laws of 18.60. (Jones v. Kelly, 170 N. Y. 401.) However, 1 am of opinion that the temporary - administrator can obtain a complete discharge'of his liability, which will terminate the liability -of his surety as well,,by accounting to the Surrogate’s Court for this' rent. In form he is required to qualify, and presumably has qualified like an administrator (Code Civ. Prod § 2670); and lie was, therefore, required to give a bond conditioned that he would faithfully discharge the trust and obey all lawful decrees of the Surrogate’s ..Court. (Code Civ. Proc. § 2664.) He obtained his authority under the order of the Surrogate’s Court, and even though'the Surrogate’s Court may'not have authority to. decide conflicting claims to this' fund'—a question which need not now be.' decided — I think he as an officer of the court is entitled, to account to it and pay the money into court and obtain a discharge and leave the question as to who is entitled to the fund in abeyance, if necessary, until a claim is made therefor;, as in case of other moneys paid into court. . The authority of the Surrogate’s Court to require him to account is not limited to the personal property, but is unlimited as tó his trust. (Code Civ. Proc. § 2726, subd. 4.) Formerly the Surrogate’s Court had authority to distribute the surplus proceeds of real estate sold hy order of the surrogate for the payment of debts of a decedent, not required for the payment of -the debts, among the heirs and devisees (Code Civ Proc. § 2793, as amd. by Laws of 1894, chap. 735, and repealed by Laws of 1904, chap. 750), and I presume the like authority still continues^under the substituted statutory provisions requiring the application of the proceeds of sale, the same as if the sale were by an executor under a power of sale (Code Civ. Proc. § 2761), for the Surrogate’s Court has jurisdiction tq require an executor to account and to distribute the proceeds of such a sale. (Code Civ. Proc. § 2726, subd. 4.) Whether by analogy like authority is vested in the surrogate as incident to his authority to appoint a tempora'ry administrator and authorize him to collect rents or not, need not now be decided. The point- essential to this decision is that the temporary administrator should account to the petitioner in the Surrogate’s Court for the personal estate; but whether the surrogate shall require him to account for the rents'- and direct that they be paid into court, or to the person entitled thereto, or allow that question to stand until the fate of the action in the Supreme Court-is known, is a matter resting in the discretion of the surrogate and concerning which I think no suggestion should be made at this time.

It follows-that the order should be reversed and the application granted to the extent of requiring the temporary administrator to account in the Surrogate’s Court for the personal estate, with ten dollars costs and disbursements to the appellant to he paid out of the . fund in the hands of the temporary administrator.

Patterson, P. J., Ingraham, Clarke and Scott JJ., concurred,

Order reversed, with ten dollars costs and disbursements to the appellant "to be paid out of the fund in the hands of the temporary administrator, and the application granted to the extent stated in opinión. 
      
       This statute was amended by chapter 291 of the Laws of 1901.— [Rep.
     