#### In the Matter of the Accounting of Charles S. Collyer, as Administrator of Elizabeth Collyer, Deceased. In the Matter of the Motion of Henry M. Collyer, as Administrator of William Edwin Collyer, Deceased, Appellant, that Fanny Collyer; as Executrix, etc., of Charles S. Collyer, as Administrator, etc., Respondent, Pay Money into Court.

Second Department,

January 24, 1908.

Executor and administrator — executrix of deceased administrator — duty to pay ovér assets — check not equivalent to payment.

A decision that an executrix deliver up property which came into her hands from an estate of which her testator was administrator is not carried into effect hy an order of the surrogate .requiring her to deliver up a check for the sum drawn hy her testator as administrator, but long overdue. The money itself, if on hand, should be required to be'paid over. '■

The right of one entitled to such moneys is not affected by the fact that the stale check offered was once tendered in open court and refused, for the check itself was not legal tender, nor- would the money represented thereby become the property of the payee or be put beyond the control of the maker, nor would the check before presentation work an assignment of the moneys.

The executrix of a deceased administrator should be required to pay over interest received by the administrator or which he should have collected on moneys, held by him. ... ,

An executrix cannot administer the assets of an estate of which her testator wa§ administrator.

Rearshment of an appeal by Henry M. Collyer, as administrator, etc., from a decree of the Surrogate’s Court of the county of West-*17Chester, entered in said court on the 29th day of December, 1906. (See 120 App. Div. 894; 121 id. 914).

' *David JEilau,*for the appellant.

*Harvey De Baun,*for the respondent.

Jenks, J.:

We reversed the order of the surrogate which determined that his court had no jurisdiction except to entertain contempt proceedings or an application for leave to issue execution, and held that ’the executor could be compelled to deliver up any of the property lvhichhad come into her hands from the estate of which her testator Avas administrator. The matter ivas thereupon remitted to the Surrogate’s Court for a hearing upon the. Iuav and the merits. (113 App. Div. 468.) The learned surrogate upon that hearing ordered that the said executor deliver up a certain check dated June 22, 1894, for $606.66, made by the executor’s testator as administrator, but denied the application in all" other respects, Avithout costs. That order Avas affirmed. On reargument I think that we. should hold that the order of affirmance Avas a mistake in that its effect Avas to discharge the executor in the premises, not upon payment of the $606.66 as property received by her as aforesaid, but upon delivery of a mere specific order or draft now fifteen years old for the payment of that sum. If the executor had the money on hand, the applicant was entitled to it forthwith and not to a stale order therefor. His right to money was not affected by the fact that this check was once tendered in open court witli a consent to an adjournment until it should be honored and that he refused it. The check was not legal tender. It was but a direction to a bank to pay the payee; the money represented did not thereby become the property of the payee nor Avas it put beyond the control of the maker of the check nor did the check before presentation work an assignment of the moneys thereby ordered to be paid. *(O’Connor*v. *Mechanics' Bank,*124 N. Y. 324.)

If this executor came into possession of any interest received- by the said administrator upon this $606.66, she could also be compelled to pay it over as assets received. If after receipt of the *18assets she was chargeable with interest, either actually received by her thereon or which she should have collected but did not, then she might he compelled to pay it over -as an asset. This executor cannot administer the assets of an estate of which her testator was • administrator. *(Matter of Moehring,*154 N. Y. 423.) If the legatee is entitled to interest in addition to his legacy, whether by the misconduct of the administrator or by operation of law, it constitutes a claim against the estate of this executor’s testator and must be enforced as such claim, and the same is true of the individual check of that testator for 862.50.

The order is reversed, with ten dollars costs' and disbursements, and the. matter remitted to the surrogate in so far as he has jurisdiction.

Woodward, Hooker, Gaynor and Rids, JJ., concurred.

Order reversed, on reargúment, with ten dollars costs and disbursements, and matter remitted to the surrogate in so far as he has jurisdiction.