Ve think that the referee’s finding that a demand was made on the 10th of December, 1882, of the defendant in behalf of the plaintiff, was warranted by the evidence given upon the hearing. Mr. Dunmore testified affirmatively that he made the demand personally of the defendant, and that the defendant refused to make any payment to the plaintiff for or on account of the trust estate. Johnson, as a witness, admitted that he held a conversation in December, 1882, with Mr. Dunmore, and that Mr. Dunmore claimed that the plaintiff was entitled to interest on all the money in my hands from the time I was appointed executor. He denies, liowever, that Mr. Dunmore made any demand for any money in any way, shape or manner. It was for the referee to determine upon the conflict between these witnesses whether or not the demand was established. We are not prepared to say that his findings are against the truth of the matter.
This action was brought to recover the income of the trust property, which came to the hands of the defendant. We think this court has jurisdiction of such an action, and that the jurisdiction of the surrogate in respect to such a legacy is not conclusive. Section 1819 of the Code of Civil Procedure, provides that a person entitled to a legacy may maintain an action against the executor who refuses to pay over after the expiration of one year from the granting of
The legacy given to the widow in lieu of dower does not abate as other legacies, and other residuary legatees are not necessary parties. (Scofield v. Adams, 12 Hun, 366.) Besides, there was not defect of parties alleged as a defense in the answer, and whatever objection the defendant might have had in that regard was waived. (Code of Civ. Pro., §§ 488-498 and 499.) We think the decree entered July 2, 1882, was not a bar to the plaintiff’s right of recovery of her legacy. Section 2742 of the Code of Civil Procedure declares upon the facts whether a surrogate’s decree should be conclusive. We think the account rendered by the defendant to the surrogate was his account as executor, and not an account as testamentary trustee. In July, 1881, the debts of the testator had not been paid, and had there been no demonstration there would have been a surplus after the debts were paid. It does not appear that the plaintiff’s right to the legacy, which she seeks to recover in this action, was or could have been litigated in the proceedings before the surrogate, and to settle the executor’s accounts. We, therefore, conclude that the surrogate’s decree was not a bar to the plaintiff’s right óf recovery in this action. (Fulton v. Whitney, 66 N. Y., 557; Marcellus v. Countryman, 65 Barb., 201.) We think it was competent -to show, by parol, what questions were included in the hearing before the surrogate. (Briggs v. Wells, 12 Barb., 567; Agan v. Hey, 30 Hun, 591.) We think the plaintiff was entitled to her rents and profits and income of the testator’s estate remaining after the payment of the funeral expenses, expenses of administration and the debts, though the precise sum was not ascertained until a period subsequent to the probate of the will. (Cooke v. Meeker, 36 N. Y., 15; Pierce v. Chamberlain, 41 How., 501.) Under this ruling the finding of the referee of the
Judgment affirmed, with costs against the appellant, personally.