The special term ordered judgment in favor of the plaintiff, on the ground that the action was upon the surrogate’s decree, and that such action was not barred until the expiration of twenty years from the time the right of action accrued. If this position cannot be maintained it is unnecessary to consider any other question of fact or law in the case, as it is conceded, and the court btilow held that the action was barred unless it could he held to be an action to enforce the judgment.
By 2 R. S. 94, § 65, the final settlement and allowance by the surrogate of the account of an executor is conclusive evidence against creditors, legatees, next of kin of the deceased, and all *657other persons interested in the estate upon whom a citation shall have been served of the following facts, viz. :
1. That the charges made in such account for money paid to creditors, to legatees, to the next of kin, and for necessary expenses are correct.
2. That the executor has been charged all the interest for which he is legally accountable.
3. That he has collected all the moneys collectible on debts due the estate.
4. That the allowances for increase and decrease of the estate are correct.
It is obvious that a decrease on final settlement determines nothing beyond the amount received and paid out by the executor, and (unless the two accounts balance each other) the balance in his hands belonging to the estate or due to him from it. Section 71, 2 R. S. 95,- provides that whenever an account shall be rendered and finally settled, if it shall appear to the surrogate that any part of the estate remains to be paid of distributed, he shall make a decree for the payment and distribution of what shall so remain to and among the creditor’s legatees, widow and next of kin, according to their respective rights, and in such decree shall settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share to whom the same shall be payable, and the sum to be paid to each person.
This section contemplates and requires a secoñd adjudication by the surrogate settling the rights of legatees, etc.! to a share of the fund in the hands of the executor, and the amount to which each is entitled.
It is not essential that the decree last mentioned should be upon a paper separate and distinct from that on final settlement. They may be in one and the same paper. Upon the decree of distribution made in conformity to the statute, an action will lie by each creditor or legatee to recover the sum adjudged to him by the decree of the surrogate.
Is the decree before us a decree for. distribution as required by section 71, above cited ? It is in terms a decree upon final settlement only, and has in it not one essential element of a decree of distribution. No creditor or legatee is named, no amount is fixed to which any person is entitled. It merely states the account, ascertains the balance in the executor’s hands, and declares that the settlement is final.
*658It is not essential, perhaps, that the names of the legatee, etc., and the amounts to which each is entitled, should be written out in the body of the decree, provided reference is made to some other record or document where the names and amounts can be correctly ascertained. Such a reference makes the paper referred to a part of the decree. It was a matter in dispute at the special term whether the legacies to the plaintiff’s mother had not lapsed by reason of her death before her father, and also, whether the executor of her father’s estate had not paid some of the legatees more than their share of the estate. Had the surrogate entered into the question of the rights of the legatees, these questions would have been determined as would also the amount to which each legatee was entitled. But he made no such adjudication. He settled and allowed the executor’s account, and rested.
Judgments and decrees should state clearly the conclusions at which the court has arrived, so as to shield the parties as far as possible from the consequence of misconstruction, and thereby extending their ‘operations beyond what the court intended, or limiting unreasonably the relief intended to be granted. A judgment or decree that the defendant pay a sum of money, without specifying the amount or providing any legal mode for ascertaining it, would have no binding force whatever. The decree in question is manifestly of that character, and cannot be enforced.
Again, I am unable to discover in the complaint any evidence that the counsel who drew it intended to declare upon the decree as a decree for the payment of money. If he did he carefully avoided disclosing his purpose.
The case of the plaintiff is an exceeding hard one, and would justify the court in going to the very limit of its power to afford relief. It may be that the surrogate can now perfect his decree by adding a clause directing distribution of the moneys in the executor’s hands. ■ It may' be his duty now to enter such a decree. He had the' parties before him, the amount due to each legatee was easily ascertained, and the parties interested should not suffer for the neglect of the surrogate to perform his whole duty. It is not our province to express an opinion on the question, and we leave it with counsel to inquire whether there is any value in the suggestion.
The judgment must be reversed and a new trial ordered, costs to abide event.
Judgment reversed and new trial ordered.