In re Estate of Walker , 74 N.Y.S. 971 ( 1902 )

Smith, J.:

By the will of Harriet Walker, James Walker took only a life estate in her property, with the right to use so much of the principal as was necessary for his support. What remained of that estate, at the death of James Walker, was given to their two sons, Walton and Silas. This remainder was not the subject of disposition by James Walker, and his attempt, in his contract with David Walker, to pass' the same to Silas Walker was clearly void, as in contravention of the instrument by which he held his title. H"o evidence was taken' upon this proceeding and the decision must rest upon the petition and the answer. While the facts are not clearly stated it is fairly inferable that the interest conveyed under the contract to David Walker was simply a vendor’s interest in a land contract. The moneys upon this contract were to be collected by David Walker and paid to James Walker as his needs should require, and for the balance David was to account. The contention of the appellant is that by the contract David Walker was made the trustee of ail express trust, which trust, upon the death of David, vested in. the Supreme Court. The answer of the respondent is that by the will of Harriet Walker, James Walker was himself made a trustee" of this property, which trust he was powerless to delegate to David Walker, and that the contract with David Walker" was, therefore, void. It seems clear that under the will of Harriet Walker, James Walker, as executor and life tenant, held such a trust position as ■ could not be abrogated by the granting of an irrevocable trust or the giving of an irrevocable power of attorney in respect of the property so held. He had the right, however, to constitute David Walker his agent to collect the rents and profits and account to him therefor. As a necessary incident of the agency he probably had the right to give to David his title to the land and land contract such as it was. James then is alone interested in the "performance of David’s contract. ' Ho provision is made for any compensation to David. Under the circumstances of this case the contract with David must be held to create either an agency revocable, at the pleasure of the principal, or merely the relation of lender and borrower with security given for moneys to be loaned. (See Heermans v. Ellsworth, 3 Hun, 473 ; Walker v. Denison, 86 Ill. 142; Blackstone v. Buttermore, 53 Penn. St. 266.) With either construction of the agreement with David Walker, no trust imposed upon James Walker by the will of Harriet Walker has been violated, and at the death of David Walker his executor is required to account for any balance she may have in her hands, which was held by David Walker at his death, as the proceeds of this agency, or. as the balance of security after payment of moneys loaned. To the amount of this balance James Walker is, I think, a creditor of the estate.

This decree is not justified, however, by the mere fact that the petitioner is a creditor. The claim which can be directed paid by the surrogate under section 2722 of the Code of Civil Procedure is a-liquidated claim undisputed. This claim is not liquidated and can only be liquidated upon an accounting. That accounting is not an accounting of the acts of Polly Walker, as executrix, but the accounting of the acts of David Walker. Such an accounting the surrogate is wholly without jurisdiction to entertain, except upon the stipulation of all parties. Without the consent to try the same before the surrogate, the claim must be liquidated and established against the estate as any other claim, before the surrogate can order its payment. After the liquidation of the claim or its establishment the surrogate of Broome county is the only surrogate with the authority to direct its payment. The appellant’s claim that the surrogate of Delaware county is the only surrogate with jurisdiction in this matter is, we think, ill founded. For the reason then that no consent has'been given for the adjudication of this claim before this surrogate, as seems to be permitted by section 1822 of the Code of Civil Procedure, we think the order of the surrogate was erroneously made and should be reversed.

All concurred.

Decree reversed, without costs, and petition dismissed.