(dissenting):
The appellants are specific legatees under the will of Alice Brooks Warren, deceased, the appellant Grace H. Bunn having been bequeathed all the clothing, wearing apparel, jewelry and personal ornaments of the deceased, as well as a money legacy of $2,000, and the appellant Margaret having been given a piano and pianola.
The respondent Utica Trust and Deposit Company was named as executor and upon probate of the will qualified as such and made an inventory by which the articles specifically bequeathed to appellant Grace were inventoried-at a lump sum of $50 and a memorandum was made that the piano and pianola bequeathed to the appellant Margaret, supposed to be of the value of about $125, was. claimed by George Brooks, the father of the testatrix, to be his property. Thereafter the executor filed its petition asking for a final judicial settlement of its accounts as such and cited the appellants thereto. An account *530was filed which stated that the personal property bequeathed 'to appellant Grace and inventoried at $50 had been turned over to her, and that the piano and pianola had not been delivered to Margaret because of the above claim of ownership.
Contesting allegations were filed by both appellants, Grace claiming that all of the articles bequeathed had not been delivered to her and asking that the same be done, and the appellant Margaret claiming that it was the duty of the executor to turn over to her the piano and pianola, and each asking, in default of delivery that the executor account for the respective values..
At the request of the appellants the executor instituted proceedings before the surrogate for discovery of assets for the purpose of ascertaining the whereabouts and claimed ownership of the various articles specifically bequeathed, which proceeding was subsequently dismissed on the ground that all debts of the estate having been paid and the executor having assented to the specific legatees taking possession of the specific legacies title thereto vested wholly in them and the executor was thereby relieved from any duty of obtaining possession and delivering such articles over to them. ■
Appellants’ objections to the account were overruled on the same ground, and from that part of the decree so adjudging the appellants appeal.
The claim of respondent that the intermediate decision of the learned surrogate on dismissal of the discovery proceeding, made on the ground that the executor having assented to the specific legatees taking possession of their legacies had no further title, is res adjudicata because the appellants assisted therein, is untenable. Such a proceeding can be taken only by the executor or administrator against a third person. Whether any binding adjudication may be made in such a proceeding or not, none was made in the present case.
The question to be determined- is whether it is the duty of an executor to obtain possession of specific legacies bequeathed under a will and deliver them over to the specific legatees, or whether he performs his duty by marshaling sufficient of the assets to pay the debts and then assenting to the legatee taking possession of the specific legacies wherever he may find them: and in such manner as he shall be able..
*531I am of opinion that it is the duty of the executor to obtain possession of the specific legacies if possible and deliver them over to the specific legatee. Section 2721 of the Code of Civil Procedure provides that no legacy shall be paid by an executor until after the expiration of one year from the time of granting letters testamentary, unless directed by the will to he sooner paid, and that after the expiration of one year the executor must discharge the specific legacies bequeathed by the will and pay the general'legacies if there be assets. This section of the Code in the respect indicated is taken from sections 43, 44 and 45 of title 3 of chapter 6 pf part 2 of the Revised Statutes. In Bevan v. Cooper (7 Hun, 117) it is said that this section 45 of the Revised Statutes (2 R. S. 90) “declares that after the expiration of one year from the granting of letters testamentary or of administration, the executors or administrators shall discharge the specific legacies bequeathed by any will, and pay the general legacies if there he assets. * * * It will be observed that the general legacies are to be paid at the expiration of the year, and that they are subject to abatement, but the specific legacies are to be discharged. In respect to the latter, the duty of the executor is to make them over, or deliver them specifically to the legatee, in the. substantial condition in which they were when the will became operative.” The foregoing decision was reversed (72 N. Y. 317, 327) upon another ground, the court stating, however, that it would affirm the decree except for the fact that the Surrogate’s Court had no jurisdiction over the particular dispute involved.
The chapter devoted to specific legacies in Williams on Executors (Vol. 2 [7th Am. ed.], 765) concludes as follows: “It may be observed in conclusion that it is the duty of executors so far as possible to preserve articles specifically bequeathed according to the testator’s wish; and unless compelled they ought not to apply them to the payment of debts. And it may be further remarked that it is also the duty of the executors to get in all the testator’s estate whether specifically bequeathed or otherwise, and that the expenses incurred in doing so must be paid out of the general estate as part of the expenses of administration. ”
The section of the Code above referred to indicates such duty *532on the part of the executor. The word “discharge” in the sense in which it is employed imports delivery. An executor, of course, performs this duty of delivery by assenting to the specific legatee retaining the legacy if'he has it in his possession or in assenting that the specific legatee take possession of it from another if he can do so peaceably. But an executor cannot relieve himself from responsibility by assenting that a specific- legatee take possession where the property is in the hands of a third person who refuses to deliver. In such a case it is the duty of the executor to obtain possession from the hostile possessor and deliver over to the legatee or to show that he could not obtain possession because the one in possession had shown title superior to that of his testator. Where a specific legacy is bequeathed it is the intention of the testator that his executor shall hand the thing named over to the specific legatee, and if an action at law is necessary before that can be done, the executor must bring the action at the expense of the estate. He cannot, as was attempted to be done in the present case, turn a lawsuit over to the specific legatee in place of the specific legacy.
The authorities upon which the respondent relies and which misled the learned surrogate deal with the perfecting of title, in the specific .legatee through assent on the part of the executor. They have no application to the primary duty of the executor to reduce the specific legacies to possession so they can be delivered to the specific legatee in case they are not required for the payment of debts.
I think that part of the decree appealed from should be reversed and the matter remitted to the Surrogate’s Court for such further action as the parties may be advised.
Sewell, J., concurred.
•Decree modified by incorporating therein a provision that the executor shall transfer to the appellants respectively the property specifically bequeathed to them so far as the estate has any interest therein, and as so modified affirmed, with costs.