#### Matter of the Judicial Settlement of the Account of Hugo C. Collmar, as Executor of the Last Will and Testament of Albert Straub, Deceased.

(Surrogate’s Court, Kings County,

February, 1913.)

Executors and administrators — commissions and expenses of — supplementary proceedings.

Where the will of a testator, who died possessed of a bond of his brother, who was his residuary legatee, for $3,000, secured by a second mortgage, contains general legacies to the amount of $850, the account of the executor, who after charging himself with said mortgage and interest as so much money in his hands, must be settled according to his statement that he has a balance of $3,811.12 subject -to commissions and expenses of administration.

The claim of said brother’s receiver in supplementary proceedings, that he is entitled to receive a part of the residuary legacy, and that the mortgage is a subsisting claim against the residuary legatee and should be enforced for the benefit of the receiver, requires no attention .upon the face of the executor’s account.

Where after the death of testator his brother gave a third mort-" gage on the same lands with an agreement that the second mortgage had been merged in the fee, that he would obtain a satisfaction thereof from the executor, and that the third mortgage should be a superior lien to the second mortgage, the third mortgagee has no standing to intervene and ask that her claim be ascertained and decreed superior'to the claim of the said receiver.

*593Until the mortgage for $3,000, without the aid of which the legacies and charges against the estate cannot he paid, is converted into cash and the actual balance of the estate is substituted for the balance as stated in the account, the rights of the receiver -and the holder of the third mortgage do not require determination; and the surrogate will not advise the executor with regard to the disposal of the mortgage for $3,000.

Proceeding upon the judicial settlement of the account of an executor.

Gustavus 6. Smith, for executor.

Gross & Surpless, for M. Shader Allen, as receiver of John G. Straub.

George Tiffany, for Jane McAllis Barwood.

Watson & Kristeller, for Marian Hand.

D. Bay McDonald, for Louise Eitel.

Ketcham, S.

The decedent died possessed of a bond of his brother for $3,'000, secured by a second mortgage. The brother is the residuary legatee and the will contains general legacies to the amount of $850.

The executor states the balance of his account, subject to commissions and expenses of administration, at $3,812.11. This sum is reached after charging himself with $3,035.50, on account of the mortgage last mentioned.

In proceedings supplementary to execution against the residuary legatee a receiver of his property was appointed, who now not only claims to be entitled to receive "a portion of the residuary legacy, but insists that the mortgage is a subsisting claim against the residuary legatee and should be enforced for the benefit of the receiver.

But since the decedent’s death, the residuary legatee has delivered a third mortgage upon the same lands; and has accompanied it with an agreement that the second mortgage has merged in the fee of the lands, that he will obtain *594from the executor á Satisfaction thereof and that the lien of the third mortgage shall he superior to the lien of the second mortgage.

In reliance upon this arrangement, the holder of the third mortgage seeks to intervene, asking that her claim be ascertained and decreed to be superior to the claims of the receiver.

Plainly the holder of this third mortgage has no standing in this proceeding. She is not a party interested in the fund now under examination. She is only the holder of the residuary legatee’s obligation. Hone of the relations or interests'which she discloses can be adjudicated in this caise. Duncan v. Guest, 5 Redf. 440 ; Matter of Redfield, 71 Hun, 344; Estate of Witte, N. Y. L. J., Jan. 16, 1913.

The claims of the receiver require no attention upon the face of this account. The executor charges himself - with the $3,000 mortgage, with interest, as so much money in his hands, and his account must be settled according to his statement.

He asks the instruction of the court in regard to the disposal of the mortgage, but the court is not his adviser. He, and not the surrogate, is the responsible officer of the estate.

There is no room for discussion as to whether the executor is justified in accounting for the mortgage and in rer ducing the same to the needs of his administration. Without the aid of the mortgage, 'the legacies and charges of the estate cannot be paid.

Hpon the account as made, standing as it does without objection, none of the questions argued requires determination. They cannot arise until the mortgage is converted into cash, and the actual balance of the estate is substituted for the balance now declared.

The decree may, therefore, direct that any party may apply on the foot thereof for proper direction.

Decreed accordingly.