FRAENZNICK V. MILLER. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-January, 1883. FRAENZNICK V. MILLER. In the matter of the judicial settlement of the account of the executors of ADOLPH BROWN, deceased. BAUER V. KASTNER. In the matter of the judicial settlement of the account of the administratrix of the estate of ELIZABETH BAUER, deceased. The proper interpretation of the provisions of the Revised Statutes (R. S., part 2, ch. 6, tit. 3, § 71), respecting the Surrogate's jurisdiction to "settle and determine all questions concerning any debt, claim, legacy," etc., upon personal representatives' accounting,-declared. Wright v. Fleming, 76 N. Y., 517, upon this question,-commented upon, at length. By the limited grant of authority contained in Code Civ. Pro., § 2743, revising the provisions of the Revised Statutes upon the subject, and requir ing the decree upon a judicial settlement of representatives' account to direct payment and distribution to persons entitled, and, where the validity of a debt, claim or distributive share is not disputed or has been established, to determine all questions concerning the same, it is intended that, whenever the executor or administrator shall dispute the validity of a debt, etc., the Surrogate's jurisdiction to adjudicate upon it is suspended, until a determination by another and a competent tribunal. A dispute about the validity of a debt, claim or distributive share, payment of which is sought at an accounting, is, within the meaning of the same section, a dispute as to whether the right to such debt, claim or share at the time exists. FRAENZNICK V. MILLER. Accordingly, where one, as next of kin or legatee, claims, on an accounting, a share in a decedent's estate, and the accounting party disputes his claim, and interposes a release or an assignment by the claimant, who assails the same as invalid by reason of fraud, that section requires the Surrogate to hold in abeyance his decree of distribution, so far, at least, as concerns that interest to which the release or assignment refers, until the parties' rights can be determined in another forum. Upon the judicial settlement of executors' account, objections having been interposed by a legatec, which the executors contended should be ignored, on the ground that objector had executed a release extinguishing her interest in the estate, and objector replying that the release was void for fraud in its procurement, Held, That the Surrogate had no jurisdiction to inquire into and determine the validity of the release in question. Upon the judicial settlement of the account of an administratrix, objections having been interposed by decedent's husband, which the administratrix contended should be ignored on the ground that objector had executed to her an assignment of all his interest in his wife's estate, and objector replying that this assignment was procured by fraud,— Held, That the Surrogate had no jurisdiction to inquire into and determine the validity of the assignment in question. Held, further, that, notwithstanding its lack of jurisdiction, as above, the proceedings should not, on the one hand, be conducted to a final decree, as if the objections had not been filed, while, on the other hand, the court was not bound to postpone an investigation into the correctness of the accounts until an adjudication by a competent tribunal on the question of such validity; but such investigation should proceed, and objectors be allowed to take part therein, on interposing allegations of fact disputing the validity of the release or assignment, and averring that, but for such release or assignment, objector would be entitled to an interest or share in the estate. The provision of Code Civ. Pro., § 2739, permitting the Surrogate, upon the judicial settlement of an executor's or administrator's account, to determine certain contests between the accounting party and any of the other parties, is too narrow to include the case of a dispute over the validity or effect of a release or an assignment from the latter to the former. HEARINGS of objections upon the judicial settlement of personal representatives' accounts. The facts are fully stated in the opinion. tors. COLERIDGE A. HART, for Augusta Fraenznick and Rosa Watteyne, objec FRAENZNICK V. MILLER. SIGISMUND KAUFMANN, for John F. Miller and others, executors. HENRY METZINGER, for John Bauer, objector. RANDOLPH GUGGENHEIMER, for Katharine Kastner, administratrix. THE SURROGATE.-The above entitled cases have been coupled, and will be considered together, though they neither concern the same parties nor relate to the same estate. Indeed, the two proceedings differ somewhat from each other, in respect to the nature of the issue submitted for the determination of the court. Each involves, however, an important question as to the jurisdiction of the Surrogate, and as to the construction of a provision of the Code from which that jurisdiction, if it exists at all, is solely derivable. Brief statements of the facts of these cases will disclose the nature of the controversies. CASE NO. 1. Brown's executors filed their accounts in October, 1880, and commenced proceedings before my predecessor for their judicial settlement. Two daughters of the testator, who were legatees under his will, interposed objections. This the executors insisted they had no right to do, because of the execution of certain releases, whereby their respective interests in the estate are claimed to have been absolutely extinguished. The legatees denied the validity of these releases, on FRAENZNICK V. MILLER. the ground of alleged fraud in their procurement, and the Surrogate (after overruling the objection that he had no jurisdiction to inquire into and determine the matter), decided upon the facts, as then presented, that the releases should be upheld, and that their effect was to deprive the objectors of any right to contest the accuracy of the accounts filed by the executor. The objectors subsequently applied to the present Surrogate for a reargument, and such reargument was permitted, for reasons stated in an opinion on file. The inquiry is now presented anew-whether these contestants can avail themselves of their objections, and, so far at least as relates to one of them, whether the Surrogate should inquire into and determine the validity of the release with which she is confronted. CASE NO. 2. Katharine Kastner has filed her account as administratrix of the estate of Elizabeth Bauer. John Bauer, the husband of decedent, whose right to be a party to this proceeding is attacked for reasons which are foreign to the present inquiry, and which will be elsewhere considered, has heretofore assigned to the administratrix whatever interest he may have had in his wife's estate. He claims, however, that this assignment was procured by fraud: that the circumstances under which it was executed should be investigated by the Surrogate; and that, as a result of such investigation, it should be pronounced invalid. The administratrix insists that the issue thus presented is not triable in this court; that the contestant's objec FRAENZNICK V. MILLER. tions should be ignored, and that the estate should be distributed as if they never had been interposed. Two questions are thus presented for my determination 1st. Has the Surrogate jurisdiction to inquire into and pass upon the validity of the release and of the assignment in the above entitled proceedings? 2d. If he is without jurisdiction, should the objections on file be entertained, or should they be disregarded? I. THE AUTHORITY OF THE SURROGATE UNDER THE PROVISIONS OF THE REVISED STATUTES. Previously to the adoption of the present Code of Civil Procedure, the Surrogate derived from § 71, tit. 3, ch. 6, part 2 of the Revised Statutes (3 Banks, 6th ed., 104), whatever authority he possessed, in reference to the determination of (a) The validity and effect of releases and assignments by persons interested in estates; and, (b) The validity of disputed claims of creditors. The provisions of § 71 were as follows: "Whenever an account shall be rendered and finally settled if it shall appear to the Surrogate that any part of the estate remains to be paid or distributed, he shall make a decree for the payment and distribution of what shall so remain, to and among the creditors, legatees, widow and next of kin of the deceased, according to their respective rights; and in such decree shall settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share; to whom the |