Concurring in the result upon the $11,175 note upon the facts, and upon the check of $6,000, because not excepted to, I do not-assent to the opinion of the majority, that the surrogate did not have jurisdiction to charge the executor with the amount of the *284$11,175 note. Section 2739 of tbe Code provides that upon tbe judicial settlement of tbe account of tbe executor, “ where a contest arises between tbe accounting party and any of tbe other partios * * * respecting a debt alleged to be due by tbe accounting party to tbe decedent, * * * tbe contest must be tried and determined in the same manner as any other issue arising in tbe Surrogate’s Court.” Now tbe creditors, in order to get payment of their debts, allege that this note was due tbe decedent — not in his own right, it may be conceded, but as trustee for bis creditors. Tbe creditor can make this claim because tbe testator, to tbe extent necessary to pay bis debts, held bis property as trustee for bis creditors, and, therefore, could not give it away to their injury.
Chapter 314, Laws 1858, gives to the executor power to disaffirm in the interest of creditors such a transfer. This executor, being tbe donee of tbe gift, did no't disaffirm it. His interest was opposed to bis duty. But be ought to have disaffirmed it, and because he voluntarily failed in duty, tbe surrogate lias power to compel bis performance of it. Tbe statute authorizes the surrogate to control executors. (2 R. S., 220, § 1.) In such' case tbe general creditor can invoke this remedy. Tbe statute dispenses with judgment and execution. (Southard v. Benner, 72 N. Y., 424.) All the parties are before tbe surrogate, and, as held in Hyland v. Baxter (98 N. Y., 610), tbe surrogate has jurisdiction to determine questions, either legal or equitable, arising in proceedings, in tbe execution of powers expressly conferred and which must be decided therein. It may be tbe creditor lias another remedy, but in no other way can lie avail himself of tbe benefit of tbe act of 1858, and it is unreasonable, that be should be deprived of the benefit of that act because tbe donee is also. executor. Richardson v. Root (19 Hun, 473) was decided before that part of section 2739 of tbe Code, above quoted, became tbe law.
Decree modified by striking out charge of $16,969.94; the adjudication that executor pay Alletta A. Akin $6,291.42, an.d lier counsel $609.10, reversed; otherwise affirmed, executor to have costs of appeal against Alletta A. Akin.