LE COUNT V. LE COUNT.

ness would or would not be afforded by inspecting the books and vouchers in question.

Section 2606, upon which these proceedings are based, does not empower the Surrogate to exact from this respondent an accounting for all the property which came into the possession or under the control of her testator as executor of John Le Count. By that section, as has been already observed, the accounting which the Surrogate can order, in a case like the present, extends only to such property as has come into the respondent's own possession, or is under her own control.

As she cannot be held accountable in this proceeding, for the indebtedness of her husband in his capacity as executor, it is profitless to inquire what is the nature and extent of such indebtedness. If it exists, it affords the basis for a claim upon her husband's estate, for which she, as his executrix, may be cited to an accounting in the Surrogate's court of Kings county.

As an incident to such a proceeding, this application for discovery might very properly be granted, and the documents whose production is here sought might afford pertinent and important evidence. But they would throw no light upon the question now at issue before the referee, and I must, therefore, deny this application (Montrose v. Wheeler, 4 Lans., 99; Dakin v. Demming, 6 Paige, 95).

Ordered accordingly.

THOMPSON V. MOTT.

NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-June, 1882.

THOMPSON V. MOTT.

In the matter of the estate of ADELAIDE THOMPSON, de

ceased.

Upon an accounting by one executor, who had exclusive possession of all the funds and property of the estate, his co-executor objected to the accounts and asked the court to direct the accounting party to transfer to him so much of the funds as would enable him to compensate his counsel for their services in the contest.

Held, that the Surrogate's power "to direct and control the conduct of executors" (Code Civ. Pro., § 2472, subd. 3) being allowed to be exercised only "in the cases and in the manner prescribed by statute" (Id., 2472), the application must be denied, as not coming within the purview of any statutory provision.

It seems, that the applicant might obtain relief under Code Civ. Pro., § 2602, providing for the case of a disagreement between executors, by applying for an order to place the money or property in the joint custody of the executors, and subject to their joint disposition; or (he being also a legatee under the will) by applying, under Code Civ. Pro., SS 2717, 2718, for an advance upon his legacy, paying counsel fees therefrom, and ultimately obtaining the allowance of a reasonable disbursement for such purpose, on his own accounting.

APPLICATION by Frank G. A. Thompson, one of decedent's executors, to compel his co-executor, Henry A. Mott, to pay him certain funds of the estate. The facts appear sufficiently in the opinion.

FRANK A. RANSOM, for F. G. A. Thompson.

CUSHMAN & VAN PELT and JAMES M. VARNUM, for Henry A. Mott.

THE SURROGATE.-The applicant, decedent's son, is one of the executors of her will. His co-executor, who has

THOMPSON V. MOTT.

the exclusive possession of all the funds and property of the estate, has filed his accounts, and this applicant has interposed certain objections thereto.

The matters at issue are pending before a referee. There is likely to be delay in this litigation, and I am now asked to direct the accounting executor to transfer to his associate such portion of those funds as will enable the latter to compensate counsel for their services in contesting the accounts. I doubt my authority to order such transfer. The power "to direct and control the conduct of executors" (which is given to the Surrogate by subd. 3 of sec. 2472 of the Code) can only be exercised, as the last subdivision declares, in the cases and in the manner prescribed by the statute (Bevan v. Cooper, 72 N. Y., 328).

Now, such an application as this does not seem to me to be within the purview of any provision of the statutes. Section 2602 of the Code empowers the Surrogate, in case of a disagreement between executors respecting the custody of the money or property of an estate, to order the same to be placed in their joint custody, and to be subject to their joint disposition. The very existence of this section furnishes strong argument for claiming that, without it, the Surrogate would have no such control over an executor as is here invoked. And in this regard, also, Mr. Throop's note referring to the decision in Burt v. Burt (41 N. Y., 46) is worthy attention.

If the objecting executor desires, therefore, he can, upon the unreasonable refusal of his associate to put estate funds within his control, avail himself of the relief afforded him by this provision of the Code.

There is another proceeding by which the applicant may, perhaps, accomplish the same result. Sections 2717

VOL. I.-3

SMITH V. MURRAY.

and 2718 provide that the Surrogate may, under certain circumstances, direct the payment or satisfaction of a legacy, or part thereof, at any time after a year has expired since the granting of letters. This applicant, being a legatee under the will as well as an executor, would be entitled, on making a proper case within those sections, to receive an advance on account of this bequest. This he could apply toward paying his counsel, and, if the disclosures of the accounting should show that he had good grounds for interposing his objections, any reasonable sum which he might thus expend would be ultimately allowed in the settlement of his own accounts as executor. The application must be denied. Ordered accordingly.

NEW YORK COUNTY.-HON. D. G.. ROLLINS, SURROGATE.-June, 1882.

SMITH V. MURRAY.

In the matter of the estate of JANE M. CHARLICK, deceased.

The mere gift of a legacy is not a manifestation of testator's intent to remit a debt due from the legatce.

An executor is justified in refusing payment to a legatee indebted to testator in a sum greater than the legacy, and applying the same in part satisfaction of the debt.

Upon a proceeding under Code Civ. Pro., §§ 2717, 2718, to procure a decree for the payment of a legacy, an answer of the executor that, at the time of testator's death, the legatee was indebted to him in a sum greater than the legacy, is a sufficient denial of the validity and legality of petitioner's claim, within the meaning of the latter section, and necessitates a dismissal of the petition.

SMITH V. MURRAY.

PETITION by Abigail A. Smith, a legatee under decedent's will, for a decree directing Jane A. Murray and Jessie Reynolds, the executrices, to pay her legacy. The facts appear sufficiently in the opinion.

T. ASTLEY ATKINS, for petitioner.

O. U. KELLOGG, for executrices.

THE SURROGATE.-The petitioner, who is a legatee under decedent's will, makes application, under section 2717 of the Code, for a decree directing the executor to pay her legacy. By the express provisions of section 2718, such a petition must be dismissed if the executor in a sworn answer denies the validity and legality of the claim, and alleges facts which support his denial.

The answer which has been interposed in the present case alleges that, at the time of decedent's death, the legatee was indebted to her in a larger sum than the amount bequeathed to her by the will. It is claimed in opposition that no such indebtedness existed, and that, within the meaning of section 2718, the averment that it did exist and still exists does not tend to impeach the validity and legality of petitioner's claim.

I cannot so construe the statute. Nobody would contend that the mere gift of a legacy is, of itself and necessarily, a manifestation of an intent on the part of the testator to remit a debt due him from the legatee. Assuming in this case, therefore, that the alleged indebtedness existed and has not been extinguished (and clearly I have no jurisdiction to find the contrary to be true), the executor is justified in refusing to pay the legacy, and in applying it in part satisfaction of the debt (Clarke