
    Ottilie Marie Steinway and Others, Respondents, v. Louis von Bernuth, as Executor and Trustee, etc., of George A. Steinway Deceased, and Others, Appellants.
    
      Jurisdiction of the Supreme Court and of the Surrogates Court over an executor's accounting — under what circumstances, when that of the Supreme Court is first invoiced, it will retain the case.
    
    The infant children of George Steinway, deceased, whose will directed a part of the income of his estate to be applied to their maintenance, brought an action in the Supreme Court against one von Bernuth, as executor and trustee under the will of George Stein way-, .deceased, the said von Bernuth and others as executors of William Steinway, deceased,, and the residuary legatees of George Steinway, deceased. The complaint therein alleged that eighteen months had elapsed since the death of George Steinway, but that von Bernuth, as his executor, had taken no steps towards an accounting; that he had refused to apply any portion of the income of the estate of George Steinway to the support of the plaintiffs, basing such refusal upon the ground that the executors , of William Steinway (von Bernuth being one of them) had made a claim a.gainst von Bernuth as executor of George Steinway, involving substantially the whole estate, and that it would be unsafe for him to make any further application of the income to the support of the plaintiffs while that claim was pending and undetermined. The complaint further alleged that von Bernuth’s wife was a residuary legatee under the will of William Stein way; that the interest of von Bernuth was antagonistic to the interest of the plaintiffs; that the claim was fraudulent, and that there was danger of a delay in the determination thereof, and that in the meantime the plaintiffs lacked support. The relief asked was a determination that the claim was invalid, an accounting by von Bernuth and such other equitable relief as might be then proper.
    
      Held, that as the jurisdiction of the Surrogate’s Court had not been invoked, the Supreme Court might retain and dispose of the matter.
    Jenks and Sewell, JJ., dissented.
    Appeal by the defendants, Louis von Bernuth, as executor and trustee, etc., of George A. Stein way, deceased, and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs,' entered in the office of the clerk of the county of Nassau on the 22d day of November, 1900, on the decision of the court rendered after a trial at the Nassau Special Term overruling demurrers to the complaint.
    
      George W. Cotterill and John Delahunty, for the appellants.
    
      R. Burnham Moffat, for the respondents.
   Interlocutory judgment affirmed on the authority of Ludwig v. Bungart (48 App. Div. 613), with costs.

All concurred, except Jenks, J., who read for reversal, with whom Sewell, J., concurred.

The following dissenting opinion was written in the present case:

J enks, J. (dissenting):

The several defendants appeal from an interlocutory judgment overruling their demurrers to the complaint. Their sixth ground of demurrer, that the complaint does not state facts sufficient to constitute, a cause of action, raises the question whether the Supreme-Court will take jurisdiction. The action is for an accounting by an executor and for certain further relief. Although the Supreme Court has jurisdiction in the premises, concurrent with the Surrogate’s Court (Haddow v. Lundy, 59 N. Y. 320; Sanders v. Soutter, 126 id. 193), yet in its discretion it will refuse to exercise such jurisdiction unless the powers of the Surrogate’s Court be inadequate, or some reason appear why complete justice cannot be meted out in that court. (Sanders v. Soutter, supra ; Douglas v. Yost, 64 Hun, 155; Matthews v. Studley, 17 App. Div. 303, 312; Blake v. Barnes, 28 Abb. N. C. 401.) In Hard v. Ashley (117 N. Y. 606) the court, per Gray, J"., say: “ The first observation we. make is with respect to the bringing of this action in the Supreme Court.. There was no reason for resorting to another forum than that established by the statute for the final settlement of an executor’s-accounts. No objection appears to have been taken on the record. If it had been made, a grave jurisdictional question would have been presented. We do [not wish to be understood, however, as-assenting to this procedure. These proceedings belong, by law, to Surrogates’ Courts, which were constituted to take jurisdiction of them, and the powers of which are appropriate and adequate for the purpose.” (See, too, Arkenburgh v. Wiggins, 13 App. Div. 96, 98.) So far as the decision in Fatman v. Fatmcm (45 N. Y. St. Repr. 859 ; appeal dismissed, 133 N. Y. 674) is concerned, that involved the question of realty, while it does not appear in this case that any realty is concerned; but on the contrary the allegation is that the claims, which are specific as to the stock and the proceeds of the life insurance, would virtually wipe out the entire estate. And the burden is upon the plaintiffs to show reason why this court should take jurisdiction.

The question then is whether any facts are alleged which warrant the Supreme Court in taking the jurisdiction to the exclusion of the court of the surrogate. The infant children of George Steinway, deceased, are plaintiffs. The defendants are von Bernuth as executor and trustee of George Steinway, deceased, the same von Bernuth and others as executors of William Stein way, deceased, and the residuary legatees of George Steinway, deceased, if the pláintiffs all die before their majorities and without issue. The complaint may be summarized as follows: In 1896 William Steinway died, leaving a will under which von Bernuth and others qualified as executors. In 1898 George Steinway, son of William Steinway, died, leaving a will under which the said von Bernuth alone qualified as an executor. Eighteen months have passed since the death of George Stein Way, and yet von Bernuth, as his executor, has taken no step toward an accounting. Until May, 1900, von Bernuth, obedient to the will, applied a part of the income of the estate to the maintenance of the infant plaintiffs. On May. 1,1900, he refused and has ever since been steadfast in refusing to make such application. The alleged ground of his refusal is that in April, 1900, the executors of William Steinway (von Bernuth being one of them) made a claim against him as executor of George Stein way which involved substantially the whole estate, and that it would be unsafe for him to naake any further application to the support of the infants while that claim was pending and undetermined. The claim is that a large amount of stock of which George Steinway died possessed was but an incompleted gift from William Stehrway to George Steinway, and is, therefore, an asset of the estate of William Steinway, and also that certain insurance upon George Stein way’s life which was. collected for the estate of George Steinway, together with the premiums paid thereon, is due the said estate of William Steinway. Von Bernuth’s wife is a residuary legatee under the will of William Steinway. It is charged that the interest of von Bernuth is ' antagonistic to the interests of the plaintiffs; that the claim is a fraud hatched in a conspiracy to strip the estate of George Steinway; that there is danger of a delay in the determination thereof, and that meantime these infants lack support. By this action the plaintiffs pray for a determination that this claim is invalid, for an accounting hy von Bernuth and for such other equitable relief as may be then due.

The learned counsel for the plaintiffs concedes that if the plaintiffs but complained of an omission to account, the Supreme Court might refuse to take jurisdiction for the reason that the remedy in the court of the surrogate was adequate. He also concedes that if the complaint went further only to stop with the allegations that the infants depend upon the income of the estate, and that the defendant refuses to apply it, that possibly this court might refuse to entertain this action for the same reason. But he insists that there are special circumstances which warrant this court in taking jurisdiction. And he points out the double relation of von Bernuth, as the executor of George Steinway’s estate, and as an executor of William Steinway’s estate, who is also the husband of one of the residuary legatees under the will of William Steinway. This relationship, it is claimed, is-peculiar enough to warrant this court to take jurisdiction, so as to entertain the action that the infant children may be present to protect their rights. But the infant children by any person can cite the executor to account in the court of the surrogate, and the remedy therein is direct and drastic (Code Civ. Proc. §§ 2727, 2728; Redf. Sur. [5th ed.] 773, 774 et seq., 786, and authorities cited), and there the infants may appear by their gemefal guardian. (Farmers’ Loan & Trust Co. v. McKenna, 3 Dem. 219.) The Surrogate’s Court has ample power to scrutinize von Bernuth’s dealings with the estate of George Steinway, and the infants have a full opportunity to be heard on the accounting. The executor has no opportunity to smuggle through this claim. Section' 2719 of the Code provides that the executor shall not satisfy his own debt or claim out of the property of the deceased until proved to and allowed by the surrogate, and it shall not have preference over others of the same class, and it has been held that£his own debt or claim ’ ” includes a claim as an administrator or an executor. (Neilley v. Neilley, 89 N. Y. 352.) The learned counsel for the plaintiffs also insists that special circumstances are shown which make this court the only forum where the plaintiffs can obtain the relief they ask,” because the Surrogate’s Court has no jurisdiction - to hear and to determine this claim. But there is jurisdiction expressly conferred. In Neilley v. Neilley (supra) it was .held that under 2 Revised Statutes, '88, section 33, the Surro-. gate’s Court had jurisdiction to settle the claim of the administra* trix of one estate against herself as administratrix of another estate, under the rule of Shakespeare v. Markham (72 N. Y. 400) and other authorities cited. In Matter of Randall (152 N. Y. 508, 515) Shakespea/re v. Ma/rkha/m was discussed, and it was said that the said section of the Revised Statutes was substantially reproduced in section 2739 of the Code, which, although repealed in 1893, was re-enacted in section 2731. And in Matter of Walker (136 N. Y. 20, 27) the court say : The entire scheme of the statute creating and defining the powers of that officer (the surrogate) has carefully excluded from him the cognizance of disputed claims against the estate of deceased persons, unless it is a debt due to an executor or administrator, or one provable in proceedings for . the sale of real estate.” Ludwig v. Bungart (48 App. Div. 613) was not cited to us, but the majority of the court is of opinion that it is conclusive authority- in this case. All that I need notice in L/ud/wig v. Bungart is the first cause of action, which sought a judicial construction of the will’; and which was dismissed at Special Term on the ground that the court should decline to exercise its jurisdiction inasmuch as the surrogate had jurisdiction. This court said: “ No case is cited to us in which . the Supreme Court, having power to construe a will, has declined to do. so upon the ground that it might also be construed in the Surrogate’s, Court, unless, at the time of the institution of the equity suit, there were already pending before the surrogate a proceeding in which the construction of the will might just as well be obtained.” It is true that in the course of the opinion the learned court said: The rule is that where both tribunals have equal jurisdiction, the cause should be retained and disposed of in the forum where judicial action was first sought. (Schuehle v. Reiman, 86 N. Y. 270; Garlock v. Vandevort, 128 id. 374.) ” In Schuehle v. Reiman (supra) the court say: It would-seem also that if both tribunals, whose interference has been invoked, have equal or concurrent jurisdiction, it should continue to he exercised by that one whose process was first issued.” To. sustain the rule there are three cases cited. In .the first (Rogers v. King, 8 Paige, 210) the chancellor said : “ If the same party who files a bill in this court against such executor or administrator subsequently cites him to account before the surrogate, the pendency' of the suit here, for the same object, ought to. be allowed by the surrogate as a valid objection to the proceeding there, in the nature of a plea in abatement.” In the second case cited (Groshon v. Lyon, 16 Barb. 461) the trustee had petitioned for leave to account for his discharge, and for the appointment of a substitute; and a reference had been ordered. It was held that the action barred an action by the eestuis que i/rustent to remove the trustee and to compel an account, for the reason that the first action afforded full relief. In the third case cited (Travis v. Myers, 67 N. Y. 542) different actions had. been brought by creditors in behalf of themselves and other creditors against an assignee for an accounting, and the court was held empowered under the statute and .the practice, to compel all creditors to prove their claims in the first action brought. In the second authority cited in Ludwig v. Bungart (Garlock v. Vandevort, supra) the Special Term dismissed the complaint in an action to construe a will on the ground that there was pending in the Surrogate’s Court a proceeding wherein the surrogate could construe the will as challenged, and the decision sustained the court, holding that the jurisdiction of the Surrogate’s Court in the premises was equal to and concurrent with that of the Supreme Court, and as’ it had first obtained jurisdiction it should retain it, citing Sohuehle v. Beiman (supra).

But, as I have stated, the case at bar is for an accounting, and the relief asked incidental thereto is especially committed to the jurisdiction. of the surrogate. The propriety of an exercise of jurisdiction by the Supreme Court was forthwith challenged by a demurrer, and, in the absence of any special reason shown why this court should exercise jurisdiction, I think that it should decline to entertain it. I think that the rale applicable to this case is enunciated in Sanders v. Soutter (126 N. Y. 200): “ A court of equity possesses jurisdiction, concurrent with the Surrogate’s Court, to entertain an action or proceeding for an accounting by executors. (Haddow v. Lundy, 59 N. Y. 320.) It seems to be the rule that the Supreme Court, in the exercise of its discretion, will decline to take jurisdic tion of an action for an accounting, by the representatives of the estate of a deceased person, unless special facts and circumstances are alleged showing that the case is one requiring relief of such a nature that the Surrogate’s Court is not competent to grant it, or some reason assigned or facts stated, to show that complete justice cannot be done in that court. (Wager v. Wager, 89 N. Y. 161; Chipman v. Montgomery, 63 id. 221; Anderson v. Anderson, 112 id. 115 ; Haddow v. Lundy, supra) But when a court of equity 'obtains jurisdiction of the matter for some special purpose, as to set aside a fraudulent deed or settlement made between.the executors and parties interested in the estate, or to grant some other special relief not within the power of the probate court, it may,, and very frequently does, retain the case for all purposes and decree a complete administration, settlement and distribution of the entire estate. (1 Pom. Eq. Juris. §§ 234, 235; 1 Story’s Eq. Juris. [13th ed.] ch. 7, §§ 423, 424; Fisher v. Hubbell, 1 T. & C. 97.)” The same learned judge who wrote in Garlook v. Vandevort (supra) wrote for the court in Hard v. Ashley (supra), and his intimation, as quoted in the first part of this opinion, is too plain to be disregarded by me. The Surrogate’s Court can deal adequately with the failure to account, with the' omission to pay over the income, and with the claim of the executors of William Steinway against the executor of George Steinway. Hence no reasons appear why the Supreme Court should take jurisdiction, and I think that the parties should be relegated to the court of the surrogate.

The interlocutory judgment should be reversed and the demurrer sustained, but without costs of this appeal to either party.

Sewell, J., concurred. 
      
       Willard Bartlett, J.:
      .The plaintiff is a legatee under the will of the defendant’s testatrix. In the first cause of action set out in the complaint she seeks a judicial construction of. that portion of the will whereby the testatrix bequeathed to the plaintiff all her “household furniture and store, with contents of house known as 29 Hamilton avenue, Borough of Brooklyn, County of Kings and State of New York.”
      The learned judge at Special Term held that “ inasmuch as the Surrogate of the county of Kings has complete power and jurisdiction to administer such relief in the premises as the plaintiff may be entitled to, if any, by reason of the matters and things set forth-in the first alleged cause of action, this court, in the exercise of its discretion, should decline to entertain said action in this respect.” The substance of the second cause of action may be stated as follows: Prior to 1890 Mrs. Christiana Bungart, the defendant’s' testatrix, was the owner of the premises No. 29 Hamilton avenue, Brooklyn, on which there stood a dwelling house with a store on the ground floor. Mrs. Bungart resided there with her son, and conducted a retail cigar and fishing tackle business from 1890 to April 5, 1898, the date of her death. The' son died on March 5, 1890, leaving Mrs. Bungart, who was a woman of advanced age, alone in the business. Mrs. Bungart also owned Nos. 67 and 69 Woodhull street. The plaintiff was well acquainted with her, and had performed many services for her prior to the death of her son. Immediately after his (death Mrs. Bungart agreed with the plaintiff that if she would collect the rents of the Woodhull street premises; have her own son make such .repairs as he could to those premises; perform such work around the house No. 29 Hamilton avenue as might be requested; attend to the payment of the taxes on both properties; and if, in addition, “she would go to the store,and residence of the said Christiana Bungart every evening and stay with her until it was time to close the place and attend to the business, as the said Christiana Bungart was afraid to be alone in the evening, in the store, after her son died, * * * she, the - said Christiana Bungart, would devise by her will or otherwise transfer to the plaintiff the house and premises No. 29 Hamilton avenue, hereinbefore described,, together with the contents of the store, including the safe and contents and household furniture, and that all should be the property and home, of .the plaintiff after the death of the said Christiana Bungart.” The plaintiff performed the agreement on her part, but has received nothing for so doing, inasmuch as Mrs. Bungart failed to devise the Hamilton avenue premises, or otherwise transfer the same to the plaintiff.
      It was admitted upon the trial that the agreement above set forth was oral, and the learned judge at Special Term held that it was void under -the Statute of Frauds. He, therefore, directed a dismissal of the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
      
        So far as the first alleged cause of action is concerned, we do not think the dismissal can be sustained. While it has many times been held that the Supreme Court may properly decline to take cognizance of a matter over which the Surrogate’s Court has concurrent jurisdiction, such refusal does not seem to be authorized unless the jurisdiction of the Surrogate’s Court has already been invoked. The rule is that where both tribunals have equal jurisdiction, the cause should be retained and disposed of in the forum where judicial action was first sought. (Schuehle v. Reiman, 86 N. Y. 270; Garlock v. Vandevort, 108 id. 374.) Here there is no proceeding now pending in the Surrogate’s Court wherein the plaintiff can obtain a construction of the clause of Mrs. Bungart’s will set out in the first alleged cause of action; and the fact that some future proceeding may be instituted before the surrogate, in which the will could be construed, is not a sufficient reason for postponing judicial action on the subject until then, and declining to exercise the equitable jurisdiction of the Supreme Court. No case is cited to us in which the Supreme Court, having power to construe a will, has declined to do so upon the ground that it might also be construed in the Surrogate’s Court, unless, at the time of the institution of the equity suit, there were already pending before the surrogate a proceeding in which the construction of the will might just as well be obtained.
      The complaint was properly dismissed as to the second alleged cause of action. The gist of that cause of action is the breach of an oral contract for the conveyance or devise of real property. Such an agreement is void under the Statute of Frauds, unless there has been such performance on the part of the plaintiff as to take it out of the operation of that statute. Where the oral agreement is to convey the land upon the payment of a specified sum of money, such payment alone is not deemed a sufficient part performance, inasmuch as a recovery of the consideration in an action at law would fully indemnify the party by whom the purchase price was paid. (Miller v. Ball, 64 N. Y. 286.) Where, however, the entire consideration has been paid and the purchaser has taken possession by consent of the vendor, has made improvements upon the land, paid the taxes and incurred expenditures which cannot easily be made good to him in an action at law, he will be entitled to enforce the contract in equity. (Winchell v. Winchell, 100 N. Y. 159, 163.) So, where the consideration for the promised conveyance consists of services to be rendered, and the services are rendered but the land is not conveyed, equity will not compel a conveyance unless the character of the services is so peculiar that it is impossible to estimate their value by a pecuniary standard — as- in the case of an agreement to care for an epileptic. (Rhodes v. Rhodes, 3 Sandf. Ch. 279.) If the money value of the services can readily be ascertained, the remedy of the vendee is an action to recover their fair and reasonable value. (Matthews v. Matthews, 133 N. Y. 679; Shakespeare v. Markham, 10 Hun, 311, 335; affd., 73 N. Y. 400.) In the case at bar there can be no-great difficulty in proving the value of the services which the plaintiff claims .to-have performed for Mrs. Bungart. They were not of such á special or unusual character as those contemplated by the parties in the Rhodes case, above cited,, and they do not bring the contract within the rule laid down in that decision.
      Our conclusion is that the case was rightly disposed of so far as the second cause of action was concerned, but that the court should have entertained jurisdiction of the first cause of action. Under these circumstances,-the proper course-seems to be to reverse the judgment as rendered. (Board of' Underwriters v. National Bank, 146 N. Y. 64, 67.) It may be assumed that upon the new trial the court at' Special Term will make the same disposition of the second cause of action as was made upon the trial already had, and the only matter upon which, further adjudication is required will be the- construction of that clause of the will which is set out in the first cause -of action.
     