
    Matilda E. Starbuck, Appellant, v. The Farmers’ Loan and Trust Company, as Executor of the Last Will and Testament of William H. Starbuck, Deceased, Respondent, Impleaded with Matilda E. Starbuck, as Executrix of the Last Will and Testament of William H. Starbuck, Deceased, Defendant.
    Pleading— an allegation that the plaintiff has no adequate remedy at law is not admitted by a demurrer — an executriw hating a personal claim against her decedent’s estate has an adequate legal remedy at law under section 2731 of the Code of Citil Procedure -±-jurisdiction of the Supreme Court.
    
    An allegation in a complaint to the effect that the plaintiff has no adequate remedy at law is merely a conclusion of la w, and hence is not admitted by a demurrer interposed to the complaint.
    The right of an executrix having á personal claim against the-estate of her decedent to establish it before the surrogate upon her final accounting, under section 2731 of the Code of Civil Procedure, affords the executrix'a sufficient and adequate remedy at law, and she is confined to this remedy..
    
      Quaere, whether the Supreme-Court has jurisdiction of an action in equity brought by the executrix as an individual against her co-executor and herself, as-.execu- . trix, to enforce a personal" claim against the estate.
    Appeal by the plaintiff, Matilda E. Starbuck, from an interlocutory judgment of the Supreme Court in favor of the defendant, The Farmers’ Loan and Trust Company, as executor of the last will and testament of William H. Starbuck, deceased, entered in the office of the clerk of the county of Mew York on the 10th day of Movember, 1897, .upon the decision of the court rendered after a trial at the Mew York Special Term sustaining the said defendant’s demurrer to the plaintiff’s amended complaint.
    
      Artemas H. Holmes, for the appellant.
    
      David McClure, for the respondent.
   McLaughlin, J.:

The plaintiff instituted this action against herself, as executrix, and the Farmers’ Loan and Trust Company, as executor of the last will and testament of William H. Starbuck, deceased, to recover a sum of money alleged to be due her from the estate which she and the trust company represent. The trust company demurred to the complaint upon the grounds (l) tliat it did not state facts sufficient to constitute a cause of action; (2) that the plaintiff did not have the legal capacity to maintain a suit against herself 'as executrix and her co-executor to recover a personal claim. The complaint charged, among other things, that the plaintiff had no adequate remedy at law to establish her claim, and it is urged that this is admitted by the demurrer. A demurrer admits every fact properly pleaded, but does not admit a conclusion of law. (Buffalo Catholic Institute v. Bitter, 87 N. Y. 250; Bogadus v. N. Y. Life Ins. Co., 101 id. 328; United States v. Ames, 99 U. S. 35.) The allegation that the plaintiff has nó adequate remedy at law is nothing more or less than the conclusion of the pleader, and, therefore, is not admitted by the demurrer. But, if it was, it might then be seriously questioned whether a court of equity in this State has or would take jurisdiction of a suit of this character. (Kyle v. Kyle, 67 N. Y. 400; Snyder v. Snyder, 96 id. 88; Hogan v. Kavanaugh, 138 id. 417.) The jurisdiction of the Supreme Court of this State in equity, under the provisions of the Constitution, includes the jurisdiction which was possessed and exercised by the Supreme Court of the colony of Rew York at any time, and by the Court of Chancery in England' on the 4th day of July, 1776, with the exceptions, additions and limitations created and imposed by the Constitution. On the 4th day'of July, 1776, the Court of Chancery in England had no jurisdiction over suits brought by an executor against the estate which he represented, for the reason that such a thing as an executor suing his estate, or interposing a claim against the estate which he represented, was unknown.

The only instance in which the Court of Chancery of England at that time exercised jurisdiction in behalf of an executor suing, were suits brought by an executor against his co-executor for something connected with or growing out of the administration of the estate. Something which inhered to the plaintiff by reason of his official capacity and not based upon a personal demand belonging to the individual who happened to be an' executor. It was something in favor of the estate and not antagonistic to it. At common law, and. in the State of Rew York, until the Revised Statutes were passed, in 1828, an executor had the right to retain out'of the assets of the estate a debt due. to him personally. This right, of retention, however, was taken away by the Revised Statutes (2 R. S. 88, § 33), and an executor could not thereafter apply funds belonging to the estate to the payment of a personal claim until allowed to do so by the surrogate.. But it is not necessary at this time to determine whether the Supreme Court has jurisdiction to entertain a suit of this character, for the reason that the plaintiff has an adequate remedy at law. By the Revised Statutes above referred to it was provided that an executor, before his individual claim could be enforced, must have it presented to and. approved by the surrogate. The right of an executor to establish a. personal claim against the estate he represents before the surrogate still exists under section 2731 of the Code of Civil Procedure. This section provides that the claim of an executor against .an estate may be proved before the surrogate upon the judicial settlement of the accounts of an executor, and, meanwhile, the Statute of Limitations, against, such claim is suspended. Therefore, there can be no question with reference to a court of equity having jurisdiction because of there being an insufficient or inadequate remedy at law, for the reason that a remedy is thus afforded by the statute, which is just as much a legal remedy as though it were one afforded by a common-law action. It is a remedy exclusive of, and which does not require for its enforcement a resort to, a court of equity. The plaintiff having the right, to present- her claim to, and have it passed upon, by, the surrogate, under the section of the Code of Civil Procedure above referred to, is confined to the remedy thus afforded, and there is no occasion for the interference of. a court of equity.

The judgment should be affirmed,,with costs.

Vah Brunt, P. J., Patterson, O’Brien and Ingraham, JJ.,. concurred.

Judgment affirmed, with Costs.  