(dissenting):
The Supreme and Surrogate’s Court have concurrent jurisdiction to compel the defendant to pay the plaintiff the amount to which she is entitled under the will, but the court which first acquires jurisdiction, has exclusivé jurisdiction. (Lewis v. Maloney, 12 Hun, 207.) As to all rents .received prior to the accounting before the Surrogate’s Court, that court acquired jurisdiction, before which court the parties litigated their claims, and are bound by its decree until reversed. The referee held that the plaintiff was entitled to recover the rents received prior to and embraced within the decree of the Surrogate’s Court, which was error.
Apart from the deeree of the Surrogate’s Court being a bar to the recovery of the rents received prior to its entry, the plaintiff at most, was only entitled to recover the income of the clear residue ($2,045.92), from the death of the testator, May 3,1878, to February 14,1883, the date of the commencement of the action. (Williamson v. Williamson, 6 Paige, 298; Williams on Executors [6 Am. ed.], 1488, 1492 and cases there cited.) The will provides : 1st. For the payment of debts, then specifically devises No. 42 Lansing street, and then gives the net annual income of the rest, residue and remainder of his estate to his widow. Kesidue means what is left after paying the debts, devises and legacies. (Phelps v. Robbins, *4340 Conn., 250; 2 Williams on Exrs. [6-Am. ed.], 1563, 1564; 2 Abb. Law Diet., 422; Wliart. Law Diet. [6-ed.], 843.)
Under the decision of the referee the plaintiff recovers the income upon the residue from the death of the testator and upon the debts, or upon .the amount required to pay the debts and more. It was not shown that defendant received or could have received income, over and above expenses, equal to the legal rate of interest on the residue, yet the sum awarded exceeds the sum which the residue could have earned at six per cent from the death of the testator to the commencement of the action. The referee gave the plaintiff costs out of the estate, and refused the defendant costs.
The prevailing opinion on this appeal charges the defendant personally with the costs of this action. No objection has been raised to the defendants account, or to a single item in it. His administration of the trust has beeu wise and economical. No part of the estate has been used for the payment of counsel or doubtful expenses. He submitted the claims of the widow to the Surrogate’s Court, without ,the aid of counsel, making no contention and has strictly followed its decree. To charge a trustee with costs under such circumstances, because an appellate court takes a different view from a court of concurrent jurisdiction of a doubtful question of law, is imposing too severe responsibilities upon trustees. It is in effect saying that they must know at their peril how the appellate court will decide the mooted question.
This action not being for the recovery of the income upon the residue, and no demand having been made upon that theory, the judgment should be reversed, and the complaint dismissed, with costs against the plaintiff.
Judgment affirmed, with .costs of appeal against appellant personally.