RIEGELMANN V. M'COY. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-August, 1882. RIEGELMANN v. McCoy. In the matter of the estate of JOHN RIEGELMANN, de ceased. It seems, that, while any controversy over the genuineness and validity of a will is pending in a Surrogate's court, or upon an appeal therefrom, the Surrogate has no authority to direct the payment of any legacy except in such contingencies as are expressly provided for by the statutes; in interpreting which, it is immaterial whether they have or have not failed to provide for cases more deserving of favorable consideration than those to which they expressly relate. Decedent's will having been admitted to probate in December, 1881, and an appeal from the decree having been taken and perfected, his widow, being also the executrix, and a principal legatee, applied, during the pendency of the appeal, for an advance to her of some portion of the estate, not exceeding in value the amount to which she would be entitled, if decedent should be finally adjudged to have died intes tate. Held, that the prayer of the petition must be denied, the statute conferring upon the Surrogate no authority to grant the same. No inference can be drawn from the language of Code Civ. Pro., § 27172719, of an intention to depart from the doctrine and practice prevailing under the Revised Statutes (part 2, ch. 6, tit. 3, § 45, 82, 83), according to which, it seems, such an advance under the circumstances would have been refused. Riegelman v. Riegelman, 4 Redf., 492-compared. PETITION by Rosina Riegelmann, decedent's widow and executrix, for payment of a legacy; opposed by Rosina McCoy, decedent's daughter, and others. The facts appear sufficiently in the opinion. BOARDMAN & BOARDMAN, for executrix. EVARTS, SOUTHMAYD & CHOATE, for Rosina McCoy and others. FREDERICK R. SHERMAN, guardian ad litem. RIEGELMANN V. M'COY. THE SURROGATE.-This decedent died in May, 1880, leaving a widow and several children. In the same month, an instrument purporting to be his will was propounded in this court. Three of his surviving children filed objections thereto, and, in December, 1881, the issues thus raised were decided by my predecessor in favor of the proponents. An appeal was taken, and proceedings thereon were pending in the Supreme Court when this petition was filed, and when, after argument, it was submitted for my determination. The decree, by which the will was admitted to probate, has been since reversed. During the pendency of the contest in this court, an application similar to that which is now presented was made, in behalf of the decedent's widow, who is one of the principal legatees. She asked for an advance of some portion of the estate, not exceeding in value the amount to which she would be entitled, if the decedent should be finally ascertained to have died intestate. The 18th chapter of the present Code of Civil Procedure had not then gone into effect. The application was based on a provision of the Revised Statutes to which I shall more particularly refer hereafter. The Surrogate dismissed the petition upon two grounds: First. Because it could not appear, until the admission of the will to probate, that the decedent's widow was entitled to a legacy, while, on the other hand, it could not appear that she was entitled to a distributive share of the estate, until the alleged will had been rejected and the decedent had been adjudged intestate. Secondly. Because the estate was at the time in charge of a temporary administrator or collector, as such an offi RIEGELMANN V. M'COY. cer was then styled, to whom the Surrogate could give no such authority as the petitioner invoked (Riegelman v. Riegelman, 4 Redf., 492). Neither of the grounds upon which this motion was formerly denied now exists, as the will has been admitted to probate, and the estate is in the hands of this petitioner as its executrix. But the respondents in this proceeding claim that, by their appeal to the General Term from the decree granting probate, the right of the executor to discharge legacies, in whole or in part, as well as the authority of the Surrogate to direct him so to do, have been effectually stayed. They insist, indeed, that, as the controversy over the probate of the will began before September 1, 1880, and before the second part of the Code of Civil Procedure went into effect, this application must be regarded as a step in that proceeding, and must, therefore, stand or fall by the law which was in force prior to that date. If this view be correct, the power of the Surrogate to grant this petition has been undoubtedly suspended by the appeal. But, for reasons which are fully set forth in the Matter of Sexton (ante, 3), I am convinced that the claim which is the basis of this application must be tested by the provisions of the Code of Civil Procedure. In order to interpret those provisions aright, it is well to make a careful examination of the statutes in force. when they were adopted. Section 45 of title 3, chapter 6, part 2 of the Revised Statutes (3 Banks, 6th ed., 98) is as follows: "After the expiration of one year from the granting of letters testamentary or letters of administration, the executors or administrators shall pay the RIEGELMANN V. M'COY. legacies, etc. Such payment may be enforced by the Surrogate." Sections 82 and 83 of the same title (3 Banks, 6th ed., 106) provide that "any person entitled to a legacy, or to a distributive share of the estate of a deceased person, at any time previous to the expiration of one year from the granting of letters testamentary, or of administration, may apply to the Surrogate, after giving reasonable notice to the executor or administrator, to be allowed to receive such portion of such legacy or share as may be necessary for his support," and that, if it shall appear that the assets in the hands of the executor or administrator exceed by one third the amount of all debts, etc., then known, such sum as the Surrogate shall deem necessary for the petitioner's support may be advanced, upon the execution of satisfactory bonds. I can find no intimation, in any decided case, that an advance under the authority of these provisions was ever sanctioned during the pendency of proceedings for probate or revocation of probate, or of proceedings on appeal from a decree admitting to probate, or denying revocation thereof. The entire scheme of the Revised Statutes was simple and consistent. The holder of letters was allowed one year, within which to collect the assets and discharge the debts. He was expressly forbidden, by a statute which is still in force, to pay any legacies during that time, unless the will so directed, or unless the Surrogate so ordered, in pursuance of the authority given him by the provisions above quoted (see section 43, title 3, chapter 6, part 2 of Revised Statutes; 3 Banks, 6th ed., 98). It was supposed that, after a year had elapsed, his knowledge of the condition of the RIEGELMANN V. M'COY. estate would inform him what could prudently and justly be done, by way of discharging the specific and general legacies. And a legatee who was impatient of delay might straightway apply to the court for relief. One year was allowed also, after the probate of a will, for the institution of proceedings for revocation, and after that year had expired, if no such proceedings had been commenced it would be ordinarily practicable to make a complete distribution of assets. It is very clear that the grant of authority to the Surrogate, to direct partial distribution within the year, was designed to cover only the claims of legatees under uncontested wills. Now, there was nothing in the scheme of the Code of Civil Procedure, as it was originally passed, which differed in any considerable degree from this system of the Revised Statutes. In place of sections 82 and 83, to which reference has just been made, there were introduced in the Code sections 2717, 2718 and 2719. They provide that a person entitled to a legacy or distributive share, etc., may apply for its payment at any time after the expiration of a year from the grant of letters; that the Surrogate must, thereupon, make such a decree as justice requires, but that he must dismiss the petition if the executor or administrator makes sworn answer denying the validity or legality of the claim, or if it is not satisfactorily proved that there are assets applicable to the payment of the claim, and which may be so applied without injuriously affecting the rights of others. And section 2719 declares that, although a year has not expired, a decree for payment may be made, if it appears that there is property in the hands of the executor or administrator applicable to the payment of debts, lega |