#### Catherine L. Meeks, as Sole Qualifying Executrix, etc., of Joseph W. Meeks, Jr., Deceased, Appellant, *v.*Edwin B. Meeks, Individually and as Sole Surviving Executor and Trustee, etc., of Joseph W. Meeks, Sr., Deceased, and Others, Respondents.

Second Department,

November 22, 1907.

Executors and administrators — accounting in Supreme Court — issues not determinable by surrogate — equitable set-off. -

When in an action in the Supreme Court to compel an executor and testamentary trustee to account and to set aside intermediate accountings in the Surrogate’s Court, the answer alleges that the plaintiff’s testator was indebted to the defendant’s testator and that the defendant had offset the indebtedness against • the plaintiff’s testator’s legacy, leaving a balance due the estate, and the reply denies the indebtedness, issues are raised which the surrogate cannot determine and the Supreme Court should assume jurisdiction. ■

Moreover, even if the validity of the plaintiff’s testator’s debt to the estate were not disputed, the right of action thereon would be in the defendant as executor, and the issue as to his equitable right as trustee to retain the income due a *cestui que trust*and apply it upon a debt owing to the estate could not be passed upon by the surrogate who has no equitable jurisdiction, and hence an accounting lies in the Supreme Court.

Appeal by the plaintiff, Catherine L. Meeks, as executrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 23d day of November, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint.

*Herbert T. Ketcham [Joseph E. Owens*and *James M. Gray*with him on the brief], for the appellant.

*Eugene D. Hawkins [Lewis L. Delafield*with him on the brief], for the respondents.

Miller, J.:

This action is brought in the Supreme Court to compel the defendant Edwin B. Meeks to ■ account as executor and testamentary trustee, to pay over • to the plaintiff such sums as shall be *462found to be due, and to set aside certain decrees, made on intermediate accountings in Surrogate’s Court. The plaintiff’s testator was the son of said defendant’s testator, and was given the income for life on a, certain portion of the estate bequeathed to said defend-ant in trust. The answer alleges among other things that the pkiintiff’s testator was indebted to said defendant’s testator in the sum of $14,399.50; that said defendant has applied portion of said income in part discharge and satisfaction of said indebtedness, and alleges that there is still due and unpaid the sum of $978.91, which is pleaded as a counterclaim, The plaintiff’s reply contains a denial and also pleads the Statute of Limitations. Upon the pleadings and the opening of counsel, the trial court dismissed the complaint, declining to entertain jurisdiction on the authority of *Borrowe*v. *Corbin*(31 App. Div. 172; affd., 165 N. *Y.*634) and the question presented by this appeal is whether any special circumstances are involved in'this case to take it out of the rule of that, case.

It is apparent that the only issue to be litigated, save the issue of fraud and illegality respecting the intermediate decrees, is the right of the trustee to deduct the alleged indebtedness of the plaintiff’s testator from the income accruing to him. So far as this depends upon the validity of said debt, the Surrogate’s Court has not jurisdiction to determine the issue. ( *Van Valkenburg*v. Lasher, 53 Hun, 594, and cases cited.) The respondents do not contend that the Surrogate’s Court has jurisdiction to determine the validity of a disputed debt claimed to be owing the estate by the *cestui que Bust,*but assert that the plaintiff does not seriously dispute the validity of said deht. It is' true that counsel for the plaintiff, in opening, stated that he should rely upon the proposition that it was the intention of the testator by his will to forgive said alleged debt. He did not state, however, that that was his sole reliance, but, on the contrary, asserted mor'e than once that the Surrogate’s Court did not have jurisdiction to determine the issue,-for the reason that the validity of said debt was disputed. It may be that said statement was equivocal, and that counsel only intended to question the validity of the debt by the claim that the testator intended to forgive it. But the question whether the debt.ever had any existence or validity is presented by the pleadings, and nothing was said by counsel in opening foreclosing him from litigating that issue; on *463the contrary, he then asserted and now reiterates an intention to do so.

Moreover, the defendant as trustee was required by the will to pay the plaintiff’s testator the income in dispute. Even if the validity of the debt were not disputed, the right of action on it would be in the executor, and the right of the trustee to retain, income due the *cestui que trust*and apply it upon a debt owing the estate by the latter, if it exist, could not be passed upon by the surrogate. The Surrogate’s Court has no equitable jurisdiction, and none to pass upon the right of set off in such a case as this. *(Stilwell*v. Carpenter, 59 N. Y. 414.) It thus appears that all the issues between the parties can be determined in one action in the Supreme Court, and that the main, if not the only, issue to be litigated cannot be determined by the Surrogate’s Court. Under these circumstances wé think the Supreme Court should have retained the cause, and the judgment dismissing the complaint should, therefore, be reversed.

Hiesohbeeg, P. J., Hookes, Gaynoe and Rich, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.