#### In the Matter of the Judicial Settlement of the Accounts of Henry McGoughran, as Administrator, etc., of Alexander McGarren, Deceased, Respondent. Hester McGarren, Appellant.

First Department,

February 21, 1908.

Executor and administrator— accounting — claim to estate as widow *— prior decree establishing invalidity of marriage res adjudicaba — claims not within jurisdiction of surrogate;

Where the decree of a surrogate refusing letters of .administration has been - affirmed by the Appellate Division upon the ground that the claimant was not the wid'ow of the decedent because the marriage had been annulled in a prior action, the decision is *res adjudieata*so as to bar a subsequent claim to the estate as widow made on an accounting of the administrator, before the surrogate. ■ '

Objections filed on the accounting of the administrator under a claim that the objectant was entitled to a portion of the personal property because it was bought.by her with her own money, are properly overruled where the claimant has brought replevin against the administrator in his individual capacity tó recover said property, .in which action the- defendant has given a bond approved by the court, for Under the circumstances the issue -is not within -the jurisdiction of the surrogate.

*313Appeal by Hester McGarren, widow of Alexander McGarren, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 27th day of November, 1907, overruling her objections to the administrator’s accounts.

*Daniel W. Blximenthal [Edward W. S. Johnston*with him on the brief], for the appellant.

*Henry W- Jessup*of counsel *[Daniel D.*Sherman, attorney], for the respondent.

Clarke, J.:

This is an appeal by Hester McGarren, claiming to be the widow of Alexander McGarren, deceased, from an order made by the surrogate overriding objections filed by her to the account of the administrator.

Alexander McGarren died a resident of the city and county of New York on the 25th day of June, 1905. On the 14th day of July, 1905, Henry McGoughran was appointed administrator of the goods, chattels and crédits of said Alexander McGarren, deceased. Thereafter one Hester McGarren, claiming to he the widow of said Alexander McGarren, deceased, instituted a proceeding in the Surrogate’s Court to obtain the revocation of the appointment of Henry McGoughran as administrator, and.her own appointment as administratrix. Such proceedings were thereafter had that a decree of the Surrogate’s Court was entered ojq. the 8th day of December, 1905, which ordered, adjudged and decreed that the said petition be in all respects denied. An.appeal was taken to this court, where said order was affirmed, and upon the remittitur being sent down to the Surrogate’s Court, the order of this court was made the order of that court on May 1, 1906. The case when here was reported in *Matter of McGarren*(112 App. Div. 503), the facts being very fully set forth in the opinion. The decision was based upon the finding that Hester was not the widow of the deceased, and, therefore, not entitled to letters of administration. This because, although a form of marriage had taken place between Hester and the decedent, a judgment of the Supreme Court of this" State was entered in this county on April 1, 1902, adjudging the alleged marriage wholly *314null and void, upon the ground of the . legal incapacity of the defendant Hester to contract said marriage at the time thereof, in that the said Hester was then the lawful wife of one Henry Shuhlein, who was then, and at the time of the judgment, still living.

■ The administrator filed .his account of his- proceedings in the. Surrogate’s. Court,, and on the :22d day of March, 1907, there was issued out of said court a citation to attend upon the judicial settlement, of the said.accounts on the 12th day of April, 1907. This citation was addressed, among others, to Hester Shuhlein, called Hester McGarren, and all persons interested iii the estate of Alexander McGarren, late deceased, next of kin, creditors or otherwise.' Thereafter a notice of appearance for Hester McGarren, as widow of Alexander - McGarren, deceased,, and , claimant of all the prop-. ert'y left, by said Alexander, dated April 4, 1907, was, served upon' the attorney for the administrator. Thereafter objections to said account by said Hester,, verified on April 20, 1907* were filed. Thereafter a motion was made by the administrator upon the pro-ceedings had, including those brought by Hester foi; the revocation 'of the appointment of the administrator, and the orders made therein in the Surrogate’s Court and'in this courts-f or an order-overruling or striking out the objections to the administrator’s account filed by said Hester. Upon said motion the surrogate made an. order on November 27, 1.907, that *“*the objections to the administrator’s account filed herein on the 24th day of April, 1907, by said Hester McGarren, and each of them, be and the same hereby are overruled.” It is from that order that this appeal is taken.

The issue raised by the objections-is- ..that objec'tant is the widow of Alexander McGarren, deceased, and entitled to all the property left by the deceased. She also claimed that certain personal property included in the inventory 'filed by the administrator was purchased by her with her personal savings and that she had instituted replevin proceedings in the. Supreme Court against Henry McGoughran to recover the personal property purchased by her with her own savings. She also set'fortlr that she had commenced an action in equity in the Supreme Court'to recover all of the real and personal property left by,the deceased upon the ground that at the time of the death of said Alexander she was and still is his law*315ful widow, and that as the deceased left no- other relations, than cousins, she claims according to the Statute of Distribution and law to be entitled to the estate left by him.

So far as the claim to personal property alleged to have been bought by her with her own money and to belong to her in her own right is concerned, she made" a claim therefor against the administrator in his individual capacity and began an action in replevin against him in his individual capacity to recover possession of the same, and in said .action the defendant has given a bond duly approved by the court. ' The surrogate well said that the claim to said property under such circumstances was not within the jurisdiction of the .Surrogate’s Court to determine.

As to the other issue the learned surrogate said : “ The issue as to whether the objectant was the widow of the decedent was tried before me and was- determined adversely to her contentions in the proceedings in this court commenced by her to set aside letters of administration granted on a petition which alleged that he died unmarried. My decree made in that proceeding was a final decree in a special proceeding, and not the mere decision of a motion, and it operated as a bar and an estoppel on her. That decree was affirmed by the Appellate Division of the Supreme Court. The parties in. interest cannot be required to try that- issue again as against the objectant.”

So far as. the Surrogate’s Court is concerned, we think that conclusion sound. That court appointed an administrator. The appellant directly attacked that appointment upon the ground that being the widow of the decedent she and she alone was entitled to letters of administration as against the administrator appointed, who was a cousin of the decedent. That issue was tried out upon the presentation in opposition to her claim of the judgment of the Supreme Court annulling the marriage upon which slie based her claim. The surrogate accepted- that judgment as binding upon him and said that lie was without jurisdiction to inquire into, the question of whether or not the Supreme Court had obtained jurisdiction of the defendant in that action. Upon appeal to this court we held that he had jurisdiction to make said inquiry and the record of the annulment suit being in the record brought to us, we pro.?, ceeded to examine said record and ponglnded that the defendant *316had been duly served therein and the court had acquired jurisdiction in said action over her, and affirmed the order of the surrogate. Thereafter the administrator, whose title was attacked- and -had been confirmed by those -proceedings, proceeded to render his account as' administrator. It does not seem reasonable that his title should be still open to attack by the same party upon the same grounds and in the same court in process of administering the same estate in which it had once been.fully litigated and decided.

It would, therefore, seem that the action of the learned surrogate in overruling the objections upon'the grounds stated was Well .taken.

The order appealed from should be affirmed, with costs and disbursements.

Pattebson, P. J., Ingeaham, Laughlin and Houghton, JJ., concurred; ■ ,

Order affirmed, with ten dollars costs and. disbursements.