[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 277 The case In re Underhill (117 N.Y. 471) is a controlling authority upon the point involved in this appeal. It was there held that on the judicial settlement of the accounts of an executor the Surrogate's Court has no jurisdiction to compel a legatee to whom an over-payment had been made by the executor to restore to the estate the amount of the over-payment, but that the executor must resort to his action to recover it. The decision was reached on a consideration of the scope of the proceeding for an accounting under the statute, the limited jurisdiction of Surrogates' Courts, and upon other considerations set forth at length in the opinion of the court. It was said that in contemplation of law all assets of the estate with which the executor is chargeable are presumed to be in his possession, except so far as they are shown to have been lawfully paid out or distributed, and that the question whether there had been an over-payment to a legatee was a matter personally between the executor and legatee to whom the over-payment had been made. It was pointed out that in ascertaining the amount of the distributive shares and the persons entitled to payments under the decree, the fact and the extent of the over-payment might become a material inquiry on the accounting, and that the decree of the surrogate in respect thereto might be binding on the legatee to whom an over-payment had been made, and who had been brought into the accounting, as res adjudicata in another proceeding to recover it. But the court held that no affirmative relief to compel re-payment could be granted by the surrogate. There are two points of distinction between that case and this upon which the respondent relies. The legatee Cecilia A. Howell was co-executor with Lang, as well as legatee under the will. It is claimed, therefore, that she held the fund paid to her in *Page 279 her character as executrix to the extent necessary to satisfy any claims against the estate. But this claim ignores the admitted fact that Lang took the sole management and possession of the estate, and that he transferred the fund to his co-executor, not in her character as such, but exclusively in her right as residuary legatee under the will. He did this not only before any accounting, but before he had made or established any personal claim against the estate. So far as appears, this claim was first made after he had voluntarily put out of his hands the means of payment. It is also urged that this case differs from In reUnderhill, in the fact that there the claim was by the executor against the legatee, while here the executor sought to recover assets to satisfy a debt due from the estate. We do not perceive that the alleged distinction creates any difference in principle between the two cases. The respondent, on the re-hearing before the surrogate, established his claim in part, and it was adjudged that it was payable out of any assets of the estate in the hands of the executor, or which might come to his hands. It appeared that he had distributed the fund applicable to its payment. Very likely, in a proper proceeding, the legatee Cecilia A. Howell could be compelled to restore it pro tanto to the executor as a payment made by mistake, and when recovered by him in that character, he would be authorized to pay his personal claim thereout. But the accounting was by Lang as executor. He had unadvisedly stripped himself of the means of paying his claim as creditor. Obviously, if the surrogate, in the case ofUnderhill, had no jurisdiction to compel a restitution, he had none in this case. Lang cannot be heard to say that the fund was not paid to his co-executor in her character as legatee contrary to his averments in his petition, or to insist that any accountability which she may be under was, as between him and her, based upon any other relation than that of debtor and creditor. We should be inclined to sustain the decision of the General Term if we could consistently with our former decision. But as was said in that case, if it is desirable that the surrogate should have a broader jurisdiction, *Page 280 which would include a case like this, it must be conferred by the legislature.
The order of the General Term should be reversed and the decree of the surrogate affirmed, with costs to the appellant in all courts.
All concur, except HAIGHT, J., not sitting.
Ordered accordingly.