In effect the order appealed from is an adjudication by the Surrogate’s Court that a lien existed in favor of the attorneys upon the amounts directed to be paid by the executor and trustee to the testator’s children, and that the Surrogate’s Court has power or jurisdiction to enforce that lien as between attorney and client, and also has power to vacate and set aside releases given to an executor and trustee by the distributees entitled under a decree of distribution, to an extent sufficient to discharge the lien of the attorneys upon the distributive shares of the persons whose claims were satisfied and released.
It is not controverted that at the time the decree of distribution was entered in this special proceeding, the attorneys had no lien under the provisions of section 66 of the Code of Civil Procedure. If they had any lien at all, it was only such as would be analogous to the common-law lien of an attorney upon a judgment which could not arise until after that judgment was recovered, for the value of the services rendered to the client in procuring it. We are not called upon in this case to determine whether such'a lien existed, for we are satisfied that even if it did exist, there is no jurisdiction in the Surrogate’s Court to vacate and set aside the releases or satisfaction pieces given by the distributees to the executor in this proceeding. The authority of the Surrogate’s Court was invoked by the attorneys on the ground that the instruments were executed and delivered collusively and in fraud of the attorneys’ rights; jurisdiction was invoked on the ground of fraud. We are not aware that the Surrogate’s Court has any authority to pass upon such a question as part of the defined jurisdiction, or as within its implied powers, either as enumerated in the statute or- resulting from necessity. “ The Surrogate’s Court possesses such jurisdiction only as is expressly conferred by statute, or necessarily implied from *6the power conferred, and that doe's not include' the power to annul or set aside a release made between parties interested in an estate and the executors on the ground of fraud. In order to obtain such relief, resort must be had to a court possessing general. equity powers and jurisdiction.” (Sanders v. Soutter, 126 N. Y. 200.) It is sought, however, to sustain the order appealed from upon the ground that the Surrogate’s Court had jurisdiction to enforce an attorney’s lien, and that the question of fraud as related to the releases given to the executor and the satisfaction of the claims of the distributees' is not material to the consideration of the power of the surrogate. The jurisdiction in this case was assumed upon the theory that the Surrogate’s Court being a court of record, and parties to proceedings in that court being authorized by law to appear and-.be represented by attorneys, the Surrogate’s Court has by necessary implication the same power to protect attorneys in the enforcement of their claims against their clients that any other court of record would have under similar circumstances; and, further, it was practically held that the Surrogate’s Court, having control of its records, can so deal with them as to make a decree of distribution of an estate enforcible against an executor or trustee for the benefit of third parties not interested in an estate until after the entry of a decree and the settlement and release of the rights of the parties pursuant to the terms of that decree. In other words, that the Surrogate’s Court, by reason of its being a court of record, has the power, after its proper jurisdiction has ended in a decree of distribution and that decree has been satisfied, to take cognizance of and determine rights of third parties against the distributees, which rights did not arise until after the decree was entered, and thus to enlarge its jurisdiction and extend it to matters foreign to the pur-" poses for which such courts were instituted; for here there was no lien upon the shares of the distributees until after the jurisdiction of the Surrogate’s Court ended, if there were any lien at all.
We are unable to find where, within the conferred or implied powers of a Surrogate’s Court, a new jurisdiction arises after its power to make a decree has been exhausted. It certainly does not arise from the fact that it is a court of record. It is not, for all purposes, a court of record; it is merely such a court for the purposes of its conferred or implied jurisdiction. It does not have the same *7power over its records that other courts of record have. It was held in Matter of Henderson (157 N. Y. 423) that the Legislature, in providing that the power conferred upon Surrogate’s Courts respecting their records “ ‘ must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same power,’ did not intend to assimilate, in all respects, the power of the Surrogate’s Court over its records to that possessed by the Supreme Court.” There is a limitation upon its power as a court of record over its records. Such power as it has in that regard is to be exercised in subordination to and to effectuate some purpose connected with the action of that court within its jurisdiction as conferred by statute, or its implied powers as defined by statute, or as necessary to the execution of its conferred powers.
We are, therefore, of opinion that the surrogate had no jurisdiction to make the order appealed from in this case, the effect of which is to allow the process of the Surrogate’s Court, peculiar in its nature and directed against the person of the executor, to be invoked for the satisfaction of a claim of a third party, not in existence at the time the surrogate’s jurisdiction to make a decree had ended. That the executor and trustee may be liable to the attorneys in another forum is a matter in respect of which we express no opinion now. We are satisfied, however, that the order appealed from should be reversed on the ground that the Surrogate’s Court had no jurisdiction to make it.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Yan Brunt, P. J., Rumsey and McLaughlin, JJ., concurred ; O’Brien, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.