
    Matter of the Final Accounting of James S. Eadie, as Executor of the Last Will and Testament of John Eadie, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      October, 1902.)
    Judicial Settlement of Account—Nature of an Executor’s Claim Against His Testator as Mortgagor—Not Subject to Collateral Attack—Costs When Denied Contestant.
    Mortgages given an executor by a testator on property of which he died seized are not claims which the executor must establish upon the judicial settlement of his account by proof, nor are such mortgages assailable therein by objectors to the account upon the ground of fraud—or otherwise than by a direct equitable action between the parties.
    Where the account as settled shows that the estate owes the executor more than he has been surcharged as a result of a contest, the contestants should not have costs as they have not rendered the estate any material benefit.
    Proceedings upon the final accounting of an executor. Motion to confirm referee’s report.
    Shipman, Larocque & Choate (Frederic A. Ward and Henry B. Pogson, of counsel), for executor; Andrew J. Provost, for contestants; William H. Ford, special guardian, for Ford S. Cole and for William M. Cole, Sr., William M. Cole, Jr., and Secor A. Cole.
   Church, S.

This is a motion to confirm a referee’s report. Except the legal proposition, which .1 will consider hereafter, the various questions which were argued before the referee turn principally upon the construction that he should give upon the evidence that was advanced.

I have examined the evidence, the referee’s report, and the briefs of counsel with considerable care. The referee had the benefit of the parties appearing before him, and could observe their demeanor and method of testifying. From this he has drawn certain conclusions, and there is nothing shown upon the papera -which would indicate that he has made any error, except that the counsel for the contestants assumes that the evidence is entitled to a different interpretation.

Upon these questions, therefort, it is unnecessary for me to say anything further, except that the referee, by his opinion, appears to give the same very careful attention and consideration and to ¡have thoroughly appreciated the importance of the various questions which were submitted to him, and not only is there nothing to show that he has committed an error in his interpretation of the same, but a careful inspection of the testimony -seems to uphold his views.

There is one question of law, however, which is argued before me with considerable force. It appears that -the testator, in his lifetime, executed to the executor two certain mortgages upon property of which he died seized and possessed. The counsel for the contestants endeavors to assail the validity of these mortgages, and contends that they are in the nature of a claim which is presented by the executor against the deceased’s estate, and that the executor must, therefore, prove his claim. In this, it seems to me, the contestants are clearly mistaken. Claims against a deceased’s estate, as understood by the law, means obligations owing by the deceased which have not been reduced to judgment, or which are not specific liens upon any portion of his estate and which require to be proved in order to be allowed.

A bond and mortgage is an instrument under seal; the bond imports consideration and is the evidence of the debt, and the mortgage is a direct lien upon the real estate of the deceased. They were, therefore, good as to all the world, until they were set aside by a decision of a court of equity in an appropriate proceeding brought for that purpose, and the executor was not required to prove the same in the ordinary method, as required of claims against a deceased’s estate. ¡Nor did the referee, nor does this court, have jurisdiction to attack these mortgages collaterally and permit the contestants to produce evidence tending to set aside such instruments on the ground of fraud. If the parties desire to set aside any apparent conveyance then they could go into a court of equity and take action to cancel or set aside these instruments. Matter of Randall, 152 N. Y. 508; Matter of Bolton, 159 id. 129.

There remains but the question of costs, which are asked for by the counsel for the contestants.

As the final account shows that the estate is in debt to the executor more than the amount which the referee has held that he should surcharge himself with, it cannot be said that the contestants, in making this contest, have rendered any material benefit to this estate, and, therefore, his request in this respect is denied.

As to the special guardian, however, he is entitled to his allowance for the services rendered herein. Let him present an affidavit showing the character of the services rendered herein.

The motion to confirm the referee’s report is granted; decree to be settled on notice.

Motion granted.  