
    Josephine Kager, Respondent, v. Charles Brenneman, Individually and as Surviving Executor, etc., of Frederick Leonhard, Deceased, and Elizabeth Brenneman, Appellants, Impleaded with Others.
    
      Surrogates decree adjudging that moneys of an estate were invested in real property —it is conclusive in an action by a legatee to recover the real property and, on the executor's wife—proper form of judgment in such an action.
    
    A surrogate has power under subdivision 11 of section 24.81 of the Code of Civil Procedure to make a decree upon the final accounting of an executor adjudging that he has invested moneys of the estate in real property and that he has received rents, issues and profits of such property for which he is accountable, and in an action brought by a legatee against the executor and his wife, and other persons occupying situations similar to the plaintiff, to compel the executor to account for the plaintiff’s proportion of such moneys and for a sale of the property in order to- enable her to realize the same, the decree, under section 3743 of the Code of Civil Procedure, is conclusive as to such matters on the executor and his wife.
    The fact that the wife of the executor was not cited in her capacity as such, but only as a legatee under the will, does not affect the conclusiveñess, as against her, of the adjudication that the interest of the estate in the realty was personal property to be accounted for by the executor.
    
      The judgment in such an action should not direct a sale of the premises, hut should simply direct the executor and his wife to convey to the plaintiff and the defendants who were similarly situated, their respective interests in the real estate, and should require the executor to account to such parties for their respective shares of the rents, issues and profits.
    Van Brunt, P. J., and McLaughlin, J., dissented. •
    • Appeal by the defendants, Charles Brenneman and Elizabeth Brenneman, severally as well as jointly, from a judgment of the Supreme Court in favor of the plaintiff, entered' in the office of the clerk of the county of Few York on the 31st day of May, 1899, upom the decision of the court rendered after a trial at the Few York Special Term.
    
      Abner C. Thomas, for the appellants.
    
      Henry A. Forster, for the respondent.
   Patterson, J.:

The question arising on this appeal relates to the competency of the only evidence by which the plaintiff sought to establish the cause of action set forth in the complaint. The suit was brought to compel the defendant Charles Brenneman to account to the plaintiff for her proportion of certain moneys of an estate which came into his hands as the executor of the last will and testament of Frederick Leonard, deceased, and to follow the moneys into and to enable her to realize her share by sale of certain real property in which she alleged the executor had invested the money and the title to which real property he took and now holds in his own name. He is made a party defendant individually and as executor. Iiis wife, Elizabeth Brenneman, is likewise a defendant, as are also certain persons interested under the will of the testator in the same manner as the plaintiff. The present appeal is by the defendants Brenneman. Charles Brenneman in his answer denies that moneys of the estate belonging to the plaintiff were invested in the realty, but he admits that certain moneys of the estate, in which others than the plaintiff afe interested, were used in that investment, but with their consent and approbation. The fundamental fact to be established by the plaintiff is the employment of the moneys of the estate in the manner asserted in the complaint.

On the trial of the action in the court below, the plaintiff, to sustain her cause of action, offered in evidence the record of a proceeding in the Surrogate’s Court of Hew York county, including the decree made in that proceeding, settling the account of Breiineman as executor, and establishing the interests of the plaintiff and other legatees in the assets of the estate, and directing distribution among various parties entitled to share in the estate, including the plaintiff and the defendants, other than the Brennemans. In the proceeding in the Surrogate’s Court it was found that the executor, Charles Brenneman, invested $29,188.36 in real estate, of which $12,388.71 was money of the estate of Frederick Leonhard. He was charged by the surrogate on the accounting with the last-mentioned sum. It was also adjudged that the executor had received certain rents, issues and profits of the same real estate for which he was accountable in that proceeding, and that this plaintiff was entitled to one undivided eighteenth equal part of such rents, issues and profits. The surrogate also decreed that the plaintiff was entitled to one-eighteenth equal part of the interest of the estate in the realty acquired partly by the use of the moneys of the estate in,its purchase, and he held that the plaintiff was entitled to that share of the realty and to the possession thereof. It appears by the pleadings that the decree of the surrogate was affirmed by' the General Term of the Supreme Court, but on appeal to the Court of Appeals it was modified, that court striking out of the decree those provisions which constituted an adjudication of title to the realty and an award of the possession thereof; but it left intact all the other provisions of the decree which defined what the assets of the estate were and the shape and form in which they existed. The court below, on the trial of this action, admitted in evidence the surrogate’s decree under the objection and exception of the appellants, whereupon the plaintiff rested her case. The defendants Brenneman offered no evidence, and the justice at Special Term directed the entry of the-judgment now appealed from, in which the relief asked in the complaint is substantially granted.

It was insisted by the defendants at the trial, as it is now, that the plaintiff was bound to establish independently and de novo all the facts which constituted her cause of action; that the surrogate’s decree was incompetent for that purpose because the effect of such a decree is expressly provided for by section 2742 of the Code of Civil Procedure, which declares that the judicial settlement of the account of an executor or administrator is conclusive evidence against the parties who were cited or appeared on the accounting of certain facts referred to in that section and of no others.- If the effect of the surrogate’s decree in the accounting of Brenneman as executor is limited by the four subdivisions of section 2742, that decree was plainly incompetent as evidence to establish the- fact of the use of the moneys of the estate of Leonhard in the purchase -of the real estate involved in this action, or the interest of the plaintiff in that which was produced by the use of. such- moneys; but on the final settlement of such an account the surrogate has something more to do than ¡pass upon debits and credits of the administration. Where there is a judicial settlement -of the account, and any part of the , estate is ready for distribution, the decree must direct payment and distribution to the persons entitled, according to their respective rights, and where the validity of a distributive share has been established upon an accounting* the decree must determine to whom it is payable, the sum to be paid by reason thereof and all other questions concerning the same, and with respect, to those matters the decree is conclusive as a judgment upon each party to the proceeding who was duly cited or appeared. (Code Civ. Proe. § 2743.)

The decree of the surrogate in this case was made for distribution, on the final settlement of the executor’s account, at his own invocation, and it was the duty of the surrogate to ascertain what the assets of the estate were. In order to do that he had jurisdiction to compel the executor to. account for the land in which he had invested the money of the estate, and for that purpose to treat the land as personal property. That was held at the General Térrn upon the accounting of this executor (Matter of Leonhard, 86 Hun, 298) upon the authority of Lockman v. Reilly (95 N. Y. 64), and the decision of the Court of Appeals in modifying the decree does not suggest or intimate a contrary view. Having the power to compel the executor to account for the land as an asset and as personal property, the surrogate had necessarily the jurisdiction to inquire into and determine all the facts relating to that investment in order that he-might •ascertain whether there was accountability for it or not. The powers of the surrogate are undoubtedly only those prescribed by statute, and he has no jurisdiction to declare title or to pass upon the ownership of realty or to enforce trusts. But by section 2481 (Subd. 11) of the Code of Civil Procedure he has authority given him to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred. Hence, where it is necessary to a decree of distribution, he may construe a will (Matter of Verplanck, 91 N. Y. 439; Garlock v. Vandevort, 128 id. 374); and so, in this case, in order to award'or make distribution of the interests of the parties entitled as legatees under the Leonhard will, he had the incidental power and jurisdiction to determine those matters of fact which would make the executor chargeable with the real property and the rents, issues and profits thereof as an asset of the testator’s estate. Therefore, he had the jurisdiction to pass upon that which is the essential and pivotal fact upon which the plaintiff’s present case rests, and that matter was litigated before him. It was necessary for him to pass upon it in order that he might determine that the rents, issues and profits were assets, and to distribute them by the decree. While his jurisdiction was circumscribed, his determination, nevertheless, constitutes an adjudication of fact by a competent tribunal with respect to the executor’s status as to this property, and as the whole matter has been litigated once between the same parties in a court of competent jurisdiction, it is res adgudicata as to all such parties, they having been properly cited and represented in the surrogate’s, proceeding.

It was further objected by the defendant Elizabeth Brenneman that the record in the Surrogate’s Court was not competent evidence against her because of her interest as dowress, and that she did not appear before the surrogate in that relation. She was not cited as the wife of Charles Brenneman, but only as a legatee under the will of her grandfather, and the rule is invoked that she cannot be affected by a decree of the surrogate which would act upon her interest as such dowress. It is a familiar rule that a judgment for or against an executor,- administrator, assignee or trustee does not generally preclude him, in a different action affecting his own person as an individual, from disputing a finding against him in a representative capacity if he is not made a party also in his individual capacity, and that a judgment against a party sued only as an individual is not an estoppel against him when he sues or is sued in another capacity or character. But that question does not arise in ' this case. Mrs. .Brenneman was a party duly cited before the surrogate, and she appeared and was represented there. In that proceeding it was adjudged that the interest of the estate in the realty was personal property to be accounted for by the executor. If it is such, and Charles Brenneman does not hold it in his own right, his -wife is not entitled to dower in that fractional interest of the real ■ property which was derived from the investment of the.estate money. The finding of the surrogate is that the executor used moneys of the estate in the purchase of this realty. Irrespective of any declaration by the surrogate that the executor thereby became a trustee ■ of a fractional part of the realty for those entitled under the will, that conclusion of law necessarily.results from the fact found,, and hence the wife would not be entitled to dower in that fractional part.

We think the decree of the surrogate was competent evidence to establish the main fact upon which the. plaintiff was éntitled to recover, but that the judgment was incorrect, in so far as- it directed a sale of the premises in order that the interest might be realized' out of the proceeds of such sale. The relief granted virtually made this an action for partition. We think that, under the proofs, the proper judgment would be a direction that the Brennemans convey to the plaintiff and the defendants Edward Leonhard, Mary E. Side and Frederick Leonhard each the one undivided part or share in the real estate instead of in the proceeds of sale, and that Charles Brenneman account to them for -their respective shares of the rents, ' issues and profits, subject to whatever deductions may be required under the proofs and findings, and as the same may be made to appear on the settlement of the judgment to be entered on this decision. The judgment, will be modified in accordance with the views herein expressed, and as thus modified affirmed, without Costs to either party.

O’Brien and Ingraham, JJ., "concurred; Van Brunt, P. J., and McLaughlin, J., dissented.

Judgment modified as directed in opinion, and as modified affirmed, without costs.  