We do not think the appellant’s claim that the Surrogate’s Court had no jurisdiction of the proceedings instituted to compel the pay*223ment of this claim, can be sustained. Section 2,717 of the Code of Civil Procedure authorizes such a proceeding. There was no written, verified answer which set forth facts that cast any doubt upon the petitioner’s claim ; nor was.there any denial of its validity or legality, either absolutely, or upon information and belief. Moreover, the validity and legality of the respondent’s claim had been conclusively established, by a judgment between the parties, rendered in an action in the Supreme Court. The answer set up that there was no money in the appellant’s hands with which to pay the petitioner’s claim. Such an answer did not require the surrogate to dismiss the respondent’s petition. It is only when it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction, that the surrogate must dismiss the petition. (Code Civil Pro., § 2,718; Matter of Macauley, 94 N. Y., 574.) Obviously such was not the ease here. The only question before the surrogate, on the merits, in this proceeding was, whether there was money or property belonging to this estate which was applicable to the payment of the respondent’s judgment, and which might be so applied without affecting the rights of others entitled to priority, or equality of payment. To determine that question an accounting was ordered. On the accounting it was held, that there was money or property to the amount of $8,720.19 for which the appellant was liable to account, and which to the extent of the respondent’s judgment and costs should be applied in payment of her claim.
But the appellant claims that inasmuch as he had transferred the entire estate to the residuary legatees, who agreed to pay the debts of the testator; and inasmuch as they had paid debts to an amount which, if added to the amount of those paid by him, would exceed the value of the personal estate which came into his hands, he should not be required to pay the respondent’s judgment against him. The surrogate has held otherwise. The appellant’s method of discharging the duties of executor and trustee is novel, but not to be commended. If that method of disposing of a trust estate were to be upheld, a most dangerous precedent would be established. These *224legatees may have paid themselves and other creditors the amount claimed, but the executor has not. Nor has the executor passed upon the justice or validity of these claims, except that of James which he had already rejected. It may be that these claims were just and valid, and would have been allowed and paid by the executor if they had been properly presented to him, and he had remained at his post of duty. They were, however, neither allowed nor paid by him. They were voluntarily paid by these legatees. This executor could not delegate his powers, as such, to these legatees, nor do the payments by the legatees inure to his benefit as against this respondent. (Matter of Keef, 43 Hun, 98; S. C., 6 N. Y. State Rep., 587.) The debts against this estate are also, evidently, barred by the statute of limitations.
At law an executor will be charged with all the assets that come to his hands to be administered, and he must discharge himself by ' showing a legal administration of all of them. A court of equity will, however, adjust the accounts of the executor upon equitable principles. (1 Perry on Trusts, § 407.) If the appellant had administered his testator’s estate as he was in duty bound to do, on a final settlement before the surrogate the rights of the respondent and her brother, as well as the rights of the other legatees under the will, could have been determined and adjusted, and the appellant would then have been properly discharged from his liability as such executor. Although the duty of this executor was plain, yet, instead of discharging his legal obligations to the creditors and legatees, he retains for his own services at least five times as much as the surrogate finds him entitled to, and with knowledge of the respondent’s claim surrenders the whole estate to the other legatees, leaving these infant heirs of the testator wholly unprotected, and the payment of their legacies unprovided for. There may have been no collusion between the appellant and the residuary legatees, still, the facts are not such as to establish any very strong equities in favor of this executor. We think the surrogate was right in holding that the payments made by these legatees were not payments by the executor ; that there was sufficient property in the hands of this executor to pay the respondent’s judgment and costs; and in making the decree appealed from.
*225It follows that the decree and order appealed from should be affirmed, with costs.
Hardin, P. J., and Follett, J., concurred.Decree of the surrogate of Oneida county affirmed, with costs.