(91 Hun, 230.)

#### BALDWIN v. SMITH et al.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Res Judicata—Decree op Surrogate’s Court.

An action to compel an executor to account for money belonging to an estate is barred by a decree of a surrogate’s court judicially settling the executor’s accounts, and deciding adversely to plaintiff’s claim, where plaintiff was served with citation in the proceeding in the surrogate's court, and appeared and asserted her claim therein.

Appeal from special term, Queens county.

Action by Elizabeth Baldwin against William Henry Smith, individually and as executor and trustee, and others, for an accounting. A demurrer to part of the answer was overruled, and plaintiff appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Mansfield Compton, for appellant.

Albert W. Seaman, for respondent.

DYKMAN, J.

This is an appeal from an order overruling the

demurrer of the plaintiff to a part of the answer of the defendant. The action is brought against the defendant as executor, and against other persons interested in the estate of Jacob Baldwin, deceased. The plaintiff demands, in her prayer for relief, that the defendant, Smith, as executor, account for all the property which came into his hands as siich executor, both real and personal, and also the proceeds of the sale of real estate sold by him under the *160power of sale contained in the avíII of the testator, together with the rents and profits of the land so sold. The facts are briefly these: On the 5th day of December, 1894, the executor filed a petition in the surrogate’s court of Queens county, praying for a judicial settlement of his accounts as executor, and final discharge. The citation was issued upon such petition, returnable on the 31st day of January, 1895, and directed, among others, to the plaintiff, and it was returned with proof of personal service upon her. On the return of the citation, on the 31st day of January, 1895, the plaintiff appeared by counsel, and filed objections to the account, by which objections the same claims were made as are now set up in the complaint, and such proceedings were had that on the 28th of February, 1895, a decree was entered, by which it was adjudged that the plaintiff had no interest in the estate of the deceased, and the decree also overruled all the objections filed by the plaintiff. In the meantime, and after the commencement of the proceedings, and after the citation had been personally served upon the plaintiff, she commenced this action by a summons and complaint. The defendant, Smith, by his amended ansAver, denied all the allegations of fraud, and, in addition to such defense, he interposed a decree in the surrogate’s court as a bar to the further prosecution of this action. To that defense the plaintiff demurred, as insufficient in law. The issue of law raised by the demurrer was argued at the special term, decided in favor of the defendant, and the order overruling the demurrer was entered, from which this appeal is taken.

It is admitted by the demurrer that the plaintiff was one of the parties before the surrogate, represented by counsel, who introduced objections to the account of the defendant as executor, and against whose interest the decree was entered. The surrogate had jurisdiction of the parties and of the subject-matter, and his decree had the same force and effect as the judgment of any other competent court. Garlock v. Vandevort, 128 N. Y. 377, 28 N. E. 599.

The decree of the surrogate, therefore, constituted a bar to this action as a previous adjudication of the questions involved therein, and the order should be affirmed, with costs to be paid by the plaintiff personally.

BROWN, P. J., concurs. PRATT, J., dissents, on the ground that the estate in remainder created by the will vested on the death of the testator.