Vulte v. Martin , 44 How. Pr. 18 ( 1867 )

By the court, Mullen, J,

By the will of O. W. Sturtevant, his wife became entitled to the whole of his estate that should remain after paying his debts.

On a settlement of the accounts of O. W. Sturtevant’s executor, the executors of Mrs. S. were necessary parties. On such settlement the surrogate had power to ascertain the amount of the assets that passed into the hands of the executor, and the amount paid out by him upon the debts of the testator. And upon payment over to the legatees or next of kin whatever surplus of assets that might remain in his hands, he was entitled to a decree declaring such settlement to be final, and'discharging him from the trust.

It is quite obvious that such a settlement involved no question as to the state of the accounts between the estate of the legatees under the will, except so far as may be necessary to ascertain what share of the assets belonged to each. In this case even that inquiry cannot -arise, as Mrs. S. took the whole estate, after the payment of the debts.

It is equally clear that such a settlement involved no inquiry into the state of the accounts between the representatives of Mrs. S. and the executor of her husband, either in his character as executor, or as trustee- of the estate. As executor, he was charged with no duty in regard to the real estate, and his accounts as trustee under a deed of trust in the lifetime of Mrs. Sturtevant could not be adjusted on this final accounting, as executor or trustee. It is only when a trust is created by a last will that the surrogate has power to settle a trustee’s accounts.

If "I am right in this, the decree must be reversed, and another accounting had, upon which the account in relation to the rents and taxes, &c., of the real estate must be excluded.

Commissions can only be allowed upon receipts and disbursements of money belonging to the estate of Mrs. Sturtevant.

The debt claimed by the defendant against his testator cannot be allowed to the defendant until its validity is legally established.

It is provided by §, 37 of the 2d title, 3d chapter 6, of second part of revised statutes, that such debts may be proved to, and allowed by the surrogate.

The surrogate’s court then has jurisdiction tó try the validity of the executor’s claim. I shall not express any opinion as to whether or not'the debt claimed by the defendant is barred by the statute of limitations. That question will properly arise when it is considered by the surrogate.

As to the claim of the defendant to be allowed for'debts of' the estate paid by him out of his means, the only way he can be allowed for them is to treat him as assignee of such debts, and to allow him the share to which such debts would be entitled, had they remained in the hands of the original creditors.

The decree of the surrogate is reversed, and proceedings remitted to the court below, with directions that another accounting be had. '

Ingraham, J., concurring.