While I concur in the result announced by the prevailing opinion, I dissent from the view that the surrogate had power to entertain the application.
Section 2743 of the Code of Civil Procedure authorizes a decree for payment and distribution upon the judicial settlement of the account of an executor or administrator. It provides that "where the validity of the debt, claim or distributive share is admitted or has been established upon the accounting or other proceeding in the Surrogate's Court or other court of *Page 312 competent jurisdiction, the decree must determine to whom it is payable, the sum to be paid by reason thereof and all other questions concerning the same." Under this section, which has been changed somewhat of late, but not so as to increase the jurisdiction of the surrogate, it has been repeatedly held that the surrogate has no power to determine the validity of an instrument executed for the disposition of a distributive share and that the surrogate has no general equitable jurisdiction. (Matter of Hodgman, 11 App. Div. 344; affirmed, 161 N.Y. 627;Matter of Randall, 152 N.Y. 508; Matter of Wagner, 119 N.Y. 28,36; Sanders v. Soutter, 126 N.Y. 193; McNulty v.Hurd, 72 N.Y. 518; Bevan v. Cooper, 72 N.Y. 317; Stilwell v. Carpenter, 59 N.Y. 414.)
If the accounting had been by an executor or administrator we could not sustain the jurisdiction of the surrogate to pass upon the effect of the releases under the statutes without violating the spirit of these decisions. While the surrogate can construe a will, this controversy involved something more than that, for it required him to decide as to the validity and effect of the instruments designed to subvert the trust which were the foundation of the claim of John Ferdon Rogers. It depended upon matters outside of the will and involved the right to set aside, wholly or in part, the three conveyances on the one hand, or on the other to hold they were valid and adjudge that the effect thereof was to terminate the trust. The surrogate had to decide whether there was still a trust. While no question of fact was involved an important question of law arose requiring the exercise of the peculiar powers of a court of equity to pass upon the existence of a trust, the validity of conveyances, the construction of statutes and the like.
It is, however, claimed that the surrogate has more power upon the judicial settlement of the account of testamentary trustees than upon the settlement of the accounts of executors and administrators. That question depends upon the construction of section 2812 of the Code of Civil Procedure, which provides that "upon a judicial settlement of the *Page 313 account of a testamentary trustee a controversy which arises respecting the right of a party to share in the money or other personal property to be paid, distributed, or delivered over, must be determined in the same manner as other issues are determined."
This section must be construed in one of two ways: (1) If a controversy arises the surrogate must determine it, even if it involves the decision of questions of fact, including, for instance, the question whether the distributive share has been fraudulently transferred and the like. This construction would clothe the surrogate with the broad power of a court of equity so far as any controversy arose "respecting the right of a party to share in the money * * * to be distributed." The power would not be limited to questions of law, but would involve all questions of fact, the determination of which was necessary to settle the controversy. There is no limitation to questions of law. There is nothing to prevent the surrogate from deciding a question of forgery, even if one of the parties demanded a jury trial. There is no classification of controversies and no distinction made between those involving questions of fact or of law only, but if any controversy arises, the surrogate, according to this construction, has power to decide it.
(2) The other construction is that a controversy which arises as to the distributive share must be tried by the surrogate, provided it is such an issue as a surrogate, according to the existing law and practice, can try, but if not, it must be determined by an action brought for the purpose, or in the same manner as such issues are usually tried. The issue might require a trial by jury, or it might require the investigation of complicated questions of fact, such as fraud and the like. It might involve the general power of a court of equity and include the most difficult questions of law. According to this construction, however, the issues could be tried in a tribunal in which such issues are usually tried, leaving the surrogate the right to try all questions expressly confided to him by statute. *Page 314
I prefer this construction because it is unreasonable to suppose that the legislature intended to give the surrogate only a limited power upon an accounting by an executor and an unlimited power on an accounting by a trustee. Did the legislature intend to make him a surrogate as to executors and a chancellor as to testamentary trustees, when there is no reason for such a distinction? Suppose the executor was also a testamentary trustee, as is frequently the case, and, as is sometimes the case, that he had never accounted in either capacity, but had separated the amount of the trust fund from the rest of the estate and had appropriated it to the trust by investing it in his name as trustee. Suppose also that he petitioned for an accounting in both capacities at the same time but in separate proceedings and that there was a question common to both, should we hold that the surrogate could decide it in the one but not in the other?
This construction is confirmed by the remaining portion of section 2812 which provides that "if such a controversy remains undetermined, after the determination of all other questions upon which the distribution of the fund, or the delivery of the personal property depends, the decree must direct that a sum, sufficient to satisfy the claim in controversy, or the proportion to which it is entitled," shall be retained in the hands of the accounting party or deposited "subject to the surrogate's order, for the purpose of being applied to the payment of the claim, when it is due, recovered or settled."
Why is such care taken to withhold the fund from distribution, so far as it is affected by the controversy which arises? Why not decide the controversy and end it if the surrogate has the power? Why postpone matters, unless it is necessary to have some other tribunal settle the controversy? If the surrogate has the power to determine it, the last part of the section is meaningless and unnecessary, but if he has not that power, its function is useful and necessary, for it gives the parties time to settle the controversy by an action in equity and yet preserve the fund intact for the person entitled to it when the controversy is settled. The section does not say *Page 315 that the surrogate is to decide the controversy, yet if it was intended to give him that power why was it not said in so many words? It certainly would simplify matters to enact that if a controversy arose as to the distributive share, the surrogate should decide it. Instead of saying this, it is provided that the controversy "must be determined in the same manner as other issues are determined." It does not say in the same manner as other issues are determined by the surrogate and by implication, clear to me at least, it means in the same manner as such issues are decided by the tribunals having jurisdiction thereof. This is the construction given by Judge DANIELS with the concurrence of Judge VAN BRUNT and Judge BRADY in Van Sinderen v. Lawrence (50 Hun, 272). It is the construction given by the court below and it is the construction which I think should be adopted by this court.
PARKER, Ch. J., O'BRIEN and WERNER, JJ., concur with CULLEN, J.; VANN, J., reads opinion concurring in result, and GRAY, J., concurs; BARTLETT, J., absent.
Order affirmed.