
    (67 Hun, 107.)
    In re STRINGER’S ESTATE. In re LANG.
    (Supreme Court, General Term, Second Department.
    February 13, 1893.)
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    Execut'ors—Settlement—Power op Surrogate.
    The fact that property has been delivered by an executor to a residuary legatee under an erroneous decree of the surrogate, ordering settlement, and disallowing a claim which the executor has as creditor against the estate, does not deprive the surrogate of power to compel restitution to the executor for payment of the claim, when the case is sent back.
    Appeal from surrogate’s court, Westchester county.
    Proceedings for settlement of the accounts of William Lang, executor of Eliza Stringer, deceased. From so much of the judgment as refused to compel restitution of property delivered by the executor to a residuary legatee, the executor appeals.
    Reversed.
    For former reports, see 15 N. Y. Supp. 461, reversing 11 N. Y. Supp. 900.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Arthur T. Hoffman, for appellant.
    H. T. Dykman, for respondent.,
   BARNARD, P. J.

William Lang and Cecelia A. Howell weix on the 20th of July, 1888, duly qualified as executors of Eliza Stringer, deceased. Both continued to act as such until September, 1889. Lang was a creditor of the estate, and Cecelia A. Howell was the general residuary legatee. In September, 1889, Lang filed his petition for a final settlement. All parties were cited. On the return day, September 23, 1889, Lang presented his bill. It was objected to, and rejected. A new trial was granted, and upon the new trial the claim was allowed; but the court held that the delivery of the property under the first decree deprived the surrogate of all power to compel restitution to the claimant, Lang. This is a hard rule. Lang had enough property to pay his claim until he was compelled to surrender it under an erroneous decree. , The legatee was also executor, and could not finally take as legatee until the judgment on the distribution and final settlement was sustained. When the case went back to the surrogate, it stood in law as if the claim had been allowed in the first instance. . There is no evidence in the case that Lang paid his coexecutor or legatee. Sho had as much right to the possession of the assets as her coexecutor, and neither she nor her coexecutor could give away to a legatee the assets until the debts were paid. Lang’s debt was from the estate, and not from his coexecutor, even if she was a legatee. The judgment, so far as appealed from, should be reversed, with costs out of estate, and Lang be decreed entitled thereto out of the property on hand when he presented his claim. All concur.  