
    In the Matter of the Final Judicial Settlement of the Accounts of James G. Hunt, as Sole Surviving Trustee of the Estate of John Ingersoll, Deceased. James G. Hunt, Individually, as Sole Surviving Trustee of the Estate of John Ingersoll, Deceased, and as Administrator, etc., of Mary Hunt, Deceased, Appellant ; Loton S. Hunt, Individually and as Administrator of Mart Hunt, Deceased, Respondent.
    Fourth Department,
    January 17, 1906.
    Surrogate’s Court — when surrogate cannot order transfer of specific . property pending accounting.
    A-Surrogate has no power, in a proceeding by a testamentary trustee for a final accounting, to order a transfer of specific bonds to a legatee who contests the account, with a provision that the trustee be credited therewith at a value thereafter to be determined by the court.
    
      Such bonds must be reduced to cash before distribution," unlessthe case is brought . within section 2744 of the Code of Civil Procedure.
    Moreover,; the surrogate has'ho p,ow.er to fix the value, of such-bonds for the purpose of distribution. ■
    Appeal by James Gr. Hunt, individually, as sole surviving trustee ' of the estate ef John Ingersoll,, deceased, and as administrator, etc., of Mary Hunt, deceased, from an order of the Surrogate’s Court .of. Herkimer county, entered in said Silrrogate’s Court on the'll th day of September, 1905, resettling an order bearing date the 3-lst day of July, 1905, and entered on. the 3d day of August, 1905.
    
      J. I. Casey, for the appellant.
    
      W. Weller, for the respondent.
   Nash, J.:

James G. Hunt, as sole surviving trustee under the will of John Ingersoll, deceased, filed his petition for the judicial settlement of his accounts as such trustee in the Surrogate’s Court of Herkimer county, and with the petition filed his account, in which it appears .that the trust fund in_ his,hands .is invested in securities, except $669.14 ifi cash, in all at the inventoried.and purchase price of the securities, amounting to $31,592.69, fi;om which amount the trustee begs leave' to credit himself or charge, himself, as the case may be, with any depreciation or. appreciation shown to have accrued upon converting the said securities into cash, as compared with the. values set upon them in this account and statement as so inventoried and purchased, and. particularly with respect to the securities listed as' - $1.1,000 in Hnited States registered 4’s, which were an actual invest- '' ment made by_the deceased testator, and were inventoried to the trus- ' tee at 121¿, and which are now believed by him to be marketable at much less than that sum, and not greatly in' excess of their par value. It is stated in the petition that upon the death of Mary Hurft the trust estate vested in her heirs, the trustee and Lo ton S. Hunt, “ each of whom is now entitled to an one equal half part thereof.” '

The citation issued'upon filing the petition and' account was return^ able JulyMO, 1905, and the proceeding was adjourned to July thirty-first, ,at which time the trustee was directed to appear in the Surrogate’s Court for the purpose of being examined in regard to his account, and with a view of determining the necessity of filing - objections theréto.

On the twenty-ninth of July Loton S. Hunt filed objections to the account,, in which it is alleged that by reason of the neglect of the trustee there has been a loss of principal of the securities,, railroad and United States registered bonds, amounting to $2,562.25.

The contestant also, by his objections, seeks to charge the account of the trustee with other sums,, amounting to several thousand dollars, and seeks to deprive the trustee of commissions.

July thirty-first the parties appeared before the surrogate. Ho examination of the trustee was required or had. Loton S. Hunt, in person, moved the court for an order directing an immediate division and transfer of a portion of the securities comprising the estate. The trustee opposed the motion and objected thereto, upon the ground that the surrogate had no jurisdiction, power or authority to make such an order; that the trustee was, as a matter of right, entitled to retain the securities and all the property and assets of the trust until a final order of distribution should be made. The court thereupon made an order as follows: The trustee herein having filed his account of his proceedings as such trustee, together with a petition for the judicial settlement of said accoúnt, and a citation having been issued' and returned with proof of due service of the same on all the parties to this accounting, and Loton S. Hunt, one of the beneficiaries under said trust, having appeared and filed objections to the account as filed, now, on motion of Loton S. Hunt, attorney'in "person, '

“ It is oedebed, that pending the hearing upon said objections, and within five days from the service upon him of a certified copy of this order, said James G. Hunt", as trustee of the estate of John Ingersoll, deceased, duly assign, transfer and deliver to said Loton S. Hunt, One Begistered U. S. Government Bond, of the face value of $5,000.00, and three Chicago, Bock Island and Pacific Befunding Bonds, of the face value of $1,000.00 each, and which are a part of the assets of said estate; that said trustee take a receipt; for the same, and that upon the entry of a decree of judicial settlement herein, said trustee be credited with the "value of said property as may hereafter be determined by the court.”

Subsequently, upon motion, tliemrder was resettled, so as to recite the appearance of counsel and'objectioiis'made in behalf of the trustee in opposition to the order on the “ ground that the Surrogate had no jurisdiction,'power or authority to make such an order; .that the trustee was- entitled as a matter bf right to. fetain: the Said securities and all the property and assets .of the said trust fund until ■ ' a final order of distribution was or should be 'made.”

The Surrogate’s Court did ■ not have' jurisdiction," power or authority to make the Order.

It has always been held that Surrogates’' Courts have only.such jurisdiction as is expressly conferred upon them by statute, and it is expressly provided by section 2472 of the Code of'Civil Procedure that the jurisdiction must be exercised in the cases and in the manner prescribed by-statute. The Code provides' when, Upon the , judicial settlement of. the accounts of an executor or administrator, the court may order delivery of specific property.

§ 2744. In either of the following cases the decree may direct the delivery of an'unsold chattel; or the assignment of an nncollected demand, or any other persbnal property,, to a party Or parties* entitled to- payment or distribution, in lieu of the money ■value of the property :• V . . .

“ 1. Where all the parties interested, who have appeared, manifest their consent thereto by a writing filed in the surrogate’s office.

2. Where it appears that a sale thereof, for the purpose of pay-, ment or distribution, would cause a loss to the (parties entitled ' thereto. -

“ The value must be ascertained, if the consent does not* fix it,.by ,a'n appraisement under oath, made by one or more persons appointed by the .surrogate for the purpose.”

.' This section of the Code is, by section 2811, made applicable to the judicial settlement of the accounts 'of testamentary trustees: •Tlie executor or administrator is required by-due course of administration to reduce the assets to cash ready for 'distribution upon, .the judicial settlement of his accounts, except for some cause shown, in which case section 2744 becomes; applicable. ' " .

The procedure to compel the delivery of property by a testamentary trustee to a person entitled thereto-, by the terms of a will, is-regulated by sections'2SQ4-2806 of the Code.

The statute does not make any provision whatever for a partial distribution of the assets of an estate by a testamentary trustee upon the judicial settlement of his accounts.

There is no provision of the statute which permits a Surrogate’s Count, as provided by the order, to fix the value of property for the purpose of distribution.

The assets of the trust should remain in the custody of the trustee until the final decree, when the proper procedure may be had as to the distribution of any specific property remaining in his hands belonging to the trust: . *

The order should be reversed.

All concurred. , . -

Order reversed, with ten dollars costs and disbursements, and application denied.  