[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 213 This proceeding was instituted under sections 205 and 206 of the Surrogate's Court Act (L. 1920, ch. 928) for the purpose of ascertaining whether certain specified securities alleged to have belonged to the testator at the time of his death were held by his widow, Sophie Hyams.
Section 205 is entitled: "Proceeding to discover property withheld." It provides that an executor, administrator or guardian may present to the Surrogate's Court from which letters were issued to him, a petition setting forth on knowledge, or information and belief, any facts tending to show that money or other personal property which should be delivered to the petitioner is in the possession or under the control, or within the knowledge or information of a person who withholds the same from him; or who refuses to impart knowledge or information he may have concerning the same, or *Page 215 disclose any other fact which will aid such executor, administrator or guardian in making discovery of such property, and praying an inquiry respecting it, and that the respondent may be ordered to attend the inquiry and be examined accordingly, and to deliver the property if in his control. If the surrogate is satisfied, on the papers presented, that there are reasonable grounds for the inquiry, he must make an order accordingly, which may be made returnable forthwith, or at a future time fixed by the surrogate.
Section 206 provides that if the person directed to appear submits an answer denying any knowledge concerning, or possession of, any property which belonged to the deceased in his lifetime, he shall be sworn to answer truly all questions put to him touching the inquiry prayed for in the petition. If it appears that the petitioner is entitled to the possession of the property, the decree shall direct delivery thereof to him. If such answer alleges title to or the right to possession of any property involved in the inquiry, the issue raised by such answer shall be heard and determined and a decree made accordingly.
The Kings County Trust Company, as executor under the last will and testament of Henry Hyams, deceased, presented a petition to the Surrogate's Court, in which it alleged that $2,000 Westinghouse Electric and Manufacturing Company bonds, and $30,000 United States securities owned by the deceased at the time of his death were in the possession of Mrs. Hyams, who withholds them from it, and asked that an inquiry be held with respect thereto.
Mrs. Hyams interposed an answer, in which she alleged that the securities in question belonged to her; that they were given to her by her husband; that of such securities she has retained, and still has, the Westinghouse bonds; that the other securities she had sold prior to the institution of this proceeding and with the proceeds *Page 216 derived from the sale purchased other securities, which she now holds.
After a hearing before the surrogate he held that the Westinghouse bonds were given to Mrs. Hyams by her husband prior to his death; and dismissed the proceeding as to the other securities, declining to make any direction in the matter, evidently upon the theory that the Surrogate's Court did not have jurisdiction to pass upon the question.
Upon appeal the Appellate Division unanimously affirmed the decree of the Surrogate's Court in so far as it related to the Westinghouse bonds, and reversed in so far as it dismissed the proceeding as to the other securities, and sent the matter back to the Surrogate's Court with directions to determine whether these securities were a valid gift inter vivos. The trust company appeals to this court as a matter of right from so much of the order of the Appellate Division as affirmed the determination of the Surrogate's Court relating to the Westinghouse bonds. Mrs. Hyams appeals, by permission, from the order of the Appellate Division in so far as it reversed the decree of the Surrogate's Court, and remitted the matter to it to determine whether she had title to the other securities.
Under the sections of the Surrogate's Court Act to which reference has been made, it will be observed that the proceeding is limited to an inquiry concerning "money or other personal property" which should be delivered to the executor. At the conclusion of the hearing the decree terminating the proceeding can only direct the delivery of specific money or personal property which belonged to the deceased in his lifetime. If such property has been exchanged for other property, or sold, then the Surrogate's Court has no power to direct that the same be turned over to the executor. (Matter of Heinze, 224 N.Y. 1.) The Surrogate's Court is a court of limited. Jurisdiction. It has only such power as is conferred upon it by statute. It has not been given power to determine *Page 217 the title, or the right to possession, of any property, other than that which belonged to the deceased in his lifetime.
It is suggested that when sections 205 and 206 are read in connection with section 40 of the Surrogate's Court Act, it has the power to determine all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter involved. Section 40 does not enlarge the powers of the Surrogate's Court in so far as the same relate to a discovery under sections 205 and 206. These sections point out specifically what must be done to obtain the discovery. An inquiry may be had concerning specific personal property. The inquiry is in terms limited to specific personal property which was owned by the decedent in his lifetime, and before a decree can be entered under section 206, it must appear that the petitioner is entitled to the possession of the specific property withheld. No decree can be entered directing the disposition of other property or proceeds derived from property in case a sale has been made. The right of an executor or administrator to compel discovery of a decedent's property is not of recent origin. It has existed for many years, as indicated by legislation and decisions upon the subject. It was not, however, until the amendment of 1914 (Chap. 443) that title to property, the possession of which was sought, could be tried. If a verified answer were interposed denying the right to the possession of the property specified, than until the amendment of 1914 the proceeding had to be dismissed. (Matter ofWalker, 136 N.Y. 20.)
The remedy now given does not apply to the case before us. Its primary purpose is still inquisitorial. It is confined exclusively to property owned by the deceased in his lifetime and it does not relate or apply to any other property. The securities, other than the Westinghouse bonds, Mrs. Hyams sold or exchanged. The securities which she now has did not belong to the testator. They were not owned by him at the time *Page 218 of his death. To say that the executor can now follow the proceeds derived from the sale of the securities which the testator did not own at the time of his death, and then impress a trust upon such securities, is to give to the Surrogate's Court power which can nowhere be found in the statute. That is not an issue to be litigated in a proceeding of this character. The right to the securities must be determined in a proper proceeding instituted for that purpose.
The order of the Appellate Division, therefore, in so far as it affirmed the decree of the Surrogate's Court relating to the Westinghouse bonds, is affirmed, and in so far as it reversed the decree of the Surrogate's Court and remitted the matter to it to determine the title of other securities, is reversed and the decree of the Surrogate's Court on that subject affirmed, with costs payable out of the estate to Sophie Hyams in this court and the Appellate Division.
Questions certified, No. 1 answered in the negative, and No. 2 not answered.
HISCOCK, Ch. J., HOGAN, POUND, CRANE and ANDREWS, JJ., concur; CARDOZO, J., not voting.
Ordered accordingly.