The moving papers contain strong prima facie evidence of the existence and validity of the claim, and it is quite apparent that injustice is likely to be done to the claimant, unless she shall be permitted to give evidence of the claim before the auditor.
On the part of the defense to the motion, it is alleged that the counsel for the executrix Was distinctly informed, on the summing up and submission of the matter to the auditor, not only that the executrix’s claim was disputed, but that it was insisted that there had been no sufficient proof to establish it before the auditor, and that if any'proof were to be given, it should be immediately given before the auditor, and before submission, and that her counsel stated that he relied upon the proceedings for the sale of the real estate as sufficient proof, and should give no further evidence. Her counsel, however, rejoins by affidavit that he did not understand the suggestions of counsel as inviting him to give further proof ; if he had, he would have accepted it.
The order for sale of the real estate recites the proceedings, and that the debts, for the purpose of *17satisfying which the said application was made, were justly due and owing, and not secured by judgment or mortgage upon, or expressly charged on the real estate of the deceased, and that the same amounted to $45,822.70 and upwards, and then proceeded to direct the sale.
It is not disputed that this latter amount embraced the executrix’s claim established before the Surrogate.
The executrix, in her account, states the amount of her claim at $9,469.01, and the amount paid $5,707.17, and the auditor refuses to allow this payment, because the claim had not been proved according to law, for the reason that the order adjudging claims valid and subsisting against the deceased was subject to adjustment as to the extent and right to share in the proceeds of sale on final accounting, and that it only adjudged the claim valid for the purpose of authorizing the sale of the real estate, and that the executrix should not be credited with the payment to herself of $5,707.17.
It is quite clear that the executrix had no authority to retain any of the assets of this estate in satisfaction of her debt or claim until it had been proved to, and allowed by, the Surrogate (3 Rev. Stat., 96 [6 ed.], § 43), and therefore, on the final accounting, she should have been charged with interest on so much of the assets as she had applied to the payment of said claim down to the time when her claim was adjudged by the Surrogate in the real estate proceedings, and the claim should have been for the full amount of her demand proven, as she had without authority appropriated assets to its payment, and she should have been charged with that amount as assets in hand.
*18By section 44 of the same statute, it is provided that proof of the debt or claim of an executor or administrador may be made on service and return of a citation for That purpose, or on the final accounting of any such -executor or administrator pursuant to the 3d article of the 3d title, chap. 6, of the 2d part of the Revised ! Statutes, which article provides, among other things, for -the settlement of such accounting, by the appointment -of auditors.' It is quite clear, therefore, that the claim in question might have been appropriately proved before the auditor in this matter.
I do not understand the auditor to hold that if the Surrogate had duly adjudged valid and subsisting .against the estate of the deceased, the claim of the executrix, on the real estate proceedings, it was not a valid establishment of the debt against the estate for all purposes, for the same proof is necessary for its establishment in that proceeding, as is required to establish it under a proceeding specially instituted for the proof of an executor’s or administrator’s claim against the estate, or on final accounting ; and I can see no good reason for holding such an establishment less binding or conclusive upon the estate, than in the other proceedings named ; but if I understand correctly the auditor’s report, he bases his opinion that the claim is not sufficiently proved by these proceedings, upon the qualifying language of the order of the Surrogate, “ subject to adjustment as to the extent, amount and right to share in the proceeds of sale,” etc.,—certainly an unusual and unfortunate expression, but not in my opinion qualifying the amount determined by that order ; and if it reserved any right *19to adjust the particular amount in case of error, the determination was effectual until such error should be established.
I entertain no doubt of the sufficiency of the proof before the auditor to establish the claim of the executrix to the amount adjudged by this court on the real estate proceedings, but it- is quite apparent that the basis of the establishment of the debt was erroneous, and under the Circumstances of the case, I think the executrix should have the opportunity to establish her claim before the auditor upon such terms as will not unreasonably delay the proceedings, or increase the expenses to the estate.
Let an order be entered, sending the matter back to the auditor to take further proof as to the validity and extent of the executrix’s claim against this estate, and that the hearing before the auditor be proceeded with upon two days’ notice, and proceed from day to day until the proof shall be in, with leave on the part of the contestants to disprove the claim as they shall be advised; the further hearing to be at the expense of the executrix as to auditor’s and stenographer’s fees, and that they pay to the two counsel opposing this motion the sum of $10 each, on service of a copy of the order to be entered herein.