
    Matter of the Judicial Settlement of the Accounts of Susie Shafer, as Executrix, Etc., of Joseph S. Babcock, Deceased.
    (Surrogate’s Court, New York County,
    June, 1901.)
    Equitable assignment.
    An instrument by the terms of which a person, named as executrix and residuary legatee of a will, agrees with attorneys that if they succeed in having it admitted to probate she will pay them one-half the sum collected by her thereunder, less certain deductions, and that their share shall become due and payable as and when she collects, is not an equitable assignment to the attorneys of thé fund but a mere covenant that she will pay therefrom after it shall have reached her hands. It creates no lien, authorizing the attorneys to compel her to account as executrix for one-half the fund, as it does not authorize the holder thereof to pay it directly to the creditors without her intervention.
    Application against an executrix to compel an accounting.
    Joseph McElroy, for petitioner.
    Job E. Hedges, for executrix.
   Thomas, S.

The application is against an executrix to compel an-accounting, and the petitioner alleges that the executrix, who is also the residuary legatee named in the will, “ duly assigned one-half of her legacy and interest in said estate to ” the petitioner and another person. The answer of the respondent denies having executed any assignment, but admits the execution of a paper, a copy of which is submitted, which paper the petitioner concedes to be the instrument relied upon by him as an assignment, and it is his contention that it must be treated as an “ equitable assignment.” This- is an agreement between the respondent, as an individual, and two lawyers, one of them being the petitioner,- by which the lawyers agree to prosecute a proceeding to procure the will of the decedent to be admitted to probate. In case of failure the respondent agreed to pay the costs and disbursements. In case of success the respondent was to retain out of any amount received by her the sum of $225 due by the décedent to her, and she agreed to pay to her lawyers one-half of all sums recovered or collected over and above costs and disbursements. It is further stipulated that said compensation is to become due and payable upon the receipt by the party of the second part * * * of any sum or sums of money whatsoever, by reason of the matter of proving the said last will and testament, and collecting and rer covering the legacies of the party of the second part thereunder.” The will was admitted to probate and about $1,188 was collected, which was divided under the agreement, but it is alleged that the respondent has collected about $400 more of assets, and the purpose of the proceeding is to require a division of this. As I construe this agreement it is not an assignment, either equitable or legal, but a mere covenant to pay from a specified fund after that fund has reached her hands. Such a covenant does not create an equitable lien upon the fund or operate as an equitable assignment thereof. Rogers v. Hosack’s Executors, 18 Wend. 319; Williams v. Ingersoll, 89 N. Y. 508, 518. “Something more is necessary. There must be an application of the fund pro tanto, either by giving an order, or by transferring it otherwise in such a.manner that the holder is authorized to pay the amount directly to the creditor, without the further intervention of the debtor.” .Thomas v. New York & G. L. R. Co., 139 N. Y. 163, 179; Wemple v. Hauenstein, 19 App. Div. 552. This conclusion requires a dismissal of the proceeding. Settle order on notice.

Proceedings dismissed.  