I think the decree of the surrogate upon the accounting by the testamentary trustee entered on the 15th of March, 1891, involved an adjudication that the provision of the will directing the application of the surplus income to the payment of the mortgages upon the testator’s real property was valid and not an unlawful accumulation of income prohibited by the law. There was presented on that accounting by one of the plaintiffs a question as to the validity of this provision of the will. He claimed that the application of the surplus income to the payment of the mortgages upon the testator’s real estate was invalid, as an Unlawful accumulation of income. This-question, with the other questions that were presented’ upon the accounting, was.referred to áreferee, who reported that the provisions of the will were valid and not an unlawful accumulation of income, and his report was confirmed by the surrogate and a decree entered in conformity with this report. The surrogate has authority to construe wills when a party expressly puts in issue, before the surrogate, the validity, construction or effect of any disposition of personal property contained in a will of a resident of the State (Code Civ. Proc. §§ 2624, 2812), and a decree made upon a judicial settlement of the accounts of a testamentary trustee has the same force as a judgment of the Supreme Court to the same effect as against each party who was duly cited or has appeared, and every person who would be bound by such a judgment rendered in'an action between the same parties. (Code Civ. Proc. § 2813.)
There can be no doubt that if an action had been commenced in, the Supreme Court for a judicial settlement of the surplus income andan issue as to the validity of this provision of the will had been presented by the pleadings and the court had adjudicated that the *61provision was valid and directed the trustee to apply the surplus income to the payment of the mortgages upon the-testator’s real estate such judgment would have been a controlling adjudication binding upon the parties to that action in a subsequent action relating to the construction of the will, and under this provision of the Code the decree of the surrogate being given the same effect as the judgment of the Supreme Court, was a binding adjudication upon all the parties to that proceeding and is controlling in this action., All of the parties interested in the estate were parties in the proceeding before the surrogate. The same question presented, namely, the validity of this provision of the will, was at issue and the decree adjudicating that this provision of the will was not a violation of the statute as to unlawful accumulation's of income is binding upon the parties to this action. (Rudd v. Cornell, 171 N. Y. 114.) In Thorn v. De Breteuil (179 N. Y. 64) it is said : “ The well-settled general rule of estoppel * * * is ‘ that the estoppel in a former judgment extends to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined,- are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered.’ ” It having been, therefore, adjudicated that this clause of the will directing the application of the surplus income was valid, that adjudication estops any of the parties to this action from questioning its validity, and under the submission judgment should, therefore, be entered for the defendant, without costs.
McLaughlin, J., concurred.
Judgment ordered for plaintiffs. Settle order on notice.