
    
      In re Phalen’s Estate.
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Executoes and Administbatobs—Advancement to Legatees.
    Petitioner applied under Code Civil Proc. N. Y. § 8717, subd. 2, one year after letters testamentary were granted, for the payment to him by the executors of $10,000, to- be charged against his interest in the estate of his fattier, by whose will he was entitled to the income of a portion of the estate left in trust for his benefit. It appeared that about $5,000 were in the hands of the executors to which he would be entitled, but that notice of an assignment by petitioner of his income to the amount of 35,000 francs had been given to the executors, and by them transferred to the ^ trustee. Held, that under Code Civil Proc. § 2718, providing that the surrogate must deny the petition where the administrators show that it is doubtful if the claim is valid and legal, or where it is not proved that there is money applicable to the claim which can without injury be so applied, the petition was properly denied; there being no evidence that the assignment was invalid, and it being therefore doubtful if petitioner had any claim to the income.
    Appeal.from surrogate’s court, New York county.
    This is an appeal from a decree of the surrogate of New York county, denying an application by Charles-J. Phalen, a legatee, under section 2717 of the Code of Civil Procedure, after the expiration of one year since letters testamentary were granted, for the payment by the executors of $10,000 to the petitioner, to be charged against him as a payment on account of his interest in said estate. The provisions of section 2718, Code Civil Proc., are as follows: “Upon the presentation of a petition, as prescribed in the last section, the surrogate must issue a citation accordingly, and upon the return thereof he must make such a decree in the premises as justice requires. But in either of the following cases the decree must dismiss the petition without prejudice to an action or an accounting in behalf of the petitioner: (1) Where the executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity and legality, absolutely or upon information and belief. (2) Where it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction.” For opinion on appeal from the order allowing an amendment to Charles J. Phalen’s petition for the revocation of the will, see 4 N. Y. Supp. 408.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Charles H. Woodruff, for C. J. Phalen, appellant. Stewart c6 Sheldon, for the executors, respondents. Roe & Maelin, for Catharine S. Phalen and others, respondents.
    
      
       Affirming 5 N. Y. Supp. 43.
    
   Daniels, J.

The application was made under the authority of subdivision 2, § 2717, Code Civil Proc. The executors answered the applicant’s petition, and it was dismissed by the surrogate, upon a hearing under section 2718 of the Code. The hearing took place upon the petition and the answer, and the surrogate considered the facts stated in the answer not only to justify, but to require, the order from which the appeal has been taken. The petitioner, by the will of his father, was given one-fourth of his residuary estate, amounting, as the executors have stated it, to not exceeding $521,000. By the will, $70,000 of the petitioner’s share was to be held in trust for him, and the rents- and profits paid over to him, and the residue of the one-fourtli he was directed to be entitled to receive in the distribution of the estate. But by the fifth codicil, afterwards added to the will, the amount directed to be held in trust was declared to be 50 general mortgage bonds of the St. Louis & Iron Mountain Bailway Company; and this direction, by the seventh codicil of the will, was again changed by the further direction that the portion of tire estate left to the petitioner should be placed in the custody of the United States Trust Company, in trust to pay its income annually, or at convenient intervals in each year, for the use of the applicant during his life. In the answer of the executors to the petition, a statement was given of the productive securities of the estate which liad been received by them under the testator’swill. These were shown to amount to the sum of $434,215, and that the income which the executors had received since letters testamentary had been issued to them amounted to no more than $70,825.07, of which amount $8,660 was interest which had accrued prior to the decease of the testator himself. It was further stated that after paying debts, expenses of administration, taxes, and certain pecuniary legacies which had been paid with the-knowledge and assent of the applicant, there remained in their hands the sum of $21,735.12. Of this amount the applicant would be entitled to no more than one-quarter, under the provisions of the will and the codicils. And as to that amount it was further stated in the answer of the executors that an assignment of the interest of the petitioner in the income of the estate, to the extent of 35,000 francs, had been presented to them, and delivered to the United States Trust Company, of the city of New York. These facts were positively stated in the answer, and no proposition to change or controvert them by proof appears to have been made on the part of the petitioner. They were therefore entitled to be considered as facts bearing upon the disposition of the application made for the payment of this money to the petitioner. The assignee of his interest in the estate to the extent already mentioned was not a party to the proceeding. If he had been, then it might have been shown that the assignment of t.he income of the estate by the petitioner was invalid. But, as the case was brought to the attention of the surrogate, this fact was not open to controversy. Neither was anything suggested in the petition or the proceeding which would entitle the executors to-disregard the claim made under the assignment, and, as the distribution directed by the will and the trust created related chiefly to personal estate, the statute restraining an assignment by the beneficiary did not in that particular apply to the case. By the assignment, of which notice was given to the executors, they were placed in a position where they might be obliged to pay to the assignee as large a sum as the applicant’s proportionate part of the balance of the income of the estate still remaining in their hands. And neither the surrogate nor the court had the authority to subject them to this liability upon the facts of the case, as they were disclosed in support of the application. It did appear by these facts in the answer that it was at least doubtful whether the petitioner had a valid or legal claim to any part of this income of the estate, and that fact, by subdivision 1, § 2718, Code, required the application of the petitioner to be dismissed. The case in this manner was brought fully within the decision of Hurlburt v. Durant, 88 N. Y. 121, and of In re Macaulay, 94 N. Y. 574. The order of the surrogate seems to liavebeen correct, and it should be affirmed, with $10 costs and the disbursements. All concur.  