
    ABRAHAM SMITH, Executor, etc., of EDWARD SMITH, Deceased, Appellant, v. JANE CHRISTOPHER and another, Respondents.
    
      Mcecutor—claim by, against estate of his testator — how proved — 2 5. 8. (4th ed.), p. 274; Oode, § 399 — effect of offering declarations of a deceased person in his own favor.
    
    An executor who has a claim against the estate of his testator, must prove the same before the surrogate, who has power to examine and determine upon its validity, on the return of a citation issued for that purpose, directed to the proper parties, or on the final accounting.
    If a party mentioned in section 399 of the Oode, testifies to declarations of a deceased person in his own favor, the prohibition contained in that section does not apply to counter-declarations offered by the adverse party.
    Appeal from a decree of the surrogate of the county of Rock-land.
    
      George W. Wager, for the executor, appellant.
    
      Andrew Fallon, for the respondents.
   Tappen, J.:

On a final settlement of the accounts of the executor, the surrogate of Rockland charged the executor, as such, with the sum of $3,000, being the amount of a certain State bond which, at the testator’s death, had been found in his trunk, and which the executor claimed to own as his sole property. The executor was a son of the deceased, and the bond was registered in the son’s name. The proof shows, and the surrogate has found, that it was the property of the testator ; that the testator’s money, in his lifetime, was invested in the bond; that it was put in the name of Abraham Smith (the son and executor), solely to evade the payment of taxes by the testator.

At the accounting, all parties being before the surrogate, the executor presented a claim for $2,000, for moneys which he alleged to be his own, and which the testator had in his lifetime collected and retained; and the executor offered to prove this claim as a debt due to him from the testator. The surrogate denied the application, stating in the decree that he had no jurisdiction to allow or determine the same. Inasmuch as an executor cannot sue himself in an action at law, it is provided by statute, that no part of the.property of the deceased shall be retained by an executor or administrator, in satisfaction of his own debt or claim, until it shall have been proved to, and allowed by, the surrogate; and the proof of such debt or claim may be made, on the service and return of a citation for that purpose, directed to the proper persons, or on the final accounting; and this course is the general practice,

This proceeding is not to be confounded with the claim of a creditor disputed by the executor, where such creditor is not either an executor or administrator. In such cases, the surrogate has not jurisdiction. But where an executor or administrator is a creditor of the deceased, the statute expressly authorizes proof of his claim to, and its examination by, the surrogate, and he is not permitted to retain any part of the property of the deceased in satisfaction thereof, without such proceedings. The surrogate, in passing upon the claim of the executor to the $3,000 bond, admitted the testimony of a party to the proceeding, being the testator’s widow, who testified to her husband’s declaration of ownership in himself. The executor thereupon offered two written declarations, having the testator’s signature, and tending to sustain the executor’s title to the bond, and these, on objection, were excluded. We are not now prepared to say how far they are affected or excluded bysection 399 of the Code; but, if a party in interest testifies to declarations of a deceased person, the prohibition contained in that section does not apply, and counter-declarations are admissible.

Inasmuch as the case must go back to the surrogate to take proof of a claim offered by the executor as a creditor, the whole proceeding will then be before him, and any error in receiving or rejecting testimony can be corrected.

Decree reversed, and proceedings remitted to surrogate, costs to abide event.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Decree of surrogate reversed, and new trial granted, costs to abide event. 
      
       2 R. S. (4 Edm.), 274.
     
      
       Dayton on Surrogates, 859; Moore v. Moore, 21 How., 211; Robinson v. Raynor, 28 N. Y. 494; Matter of Cunningkam, 1 Hun S. C. R., 214.
     
      
      
         Andrews v. Wallege, 17 How., 268.
     