#### James A. Ruthven *et al.*executors, &c. plaintiffs and respondents, *vs.*Joseph H. Patten, administrator, *et al.*defendants and appellants.

1. The surrogate has no power, without any account rendered and an inquiry into the assets and various debts of a deceased intestate, to decree absolute payment by his personal representative, of a debt not resting in judgment which is contested by him.

2. He can not; upon a creditor’s application for payment, and without any such accounting, try the merits of a disputed claim and decree payment. And although such personal representative may have once made an admission of the validity of such demand, his litigation of it upon such application takes away the surrogate’s jurisdiction.

3. In an action upon an administrator’s bond, by a creditor to whom it has been assigned by the surrogate, to enable him to bring such action to recover the amount of such surrogate’s decree for the payment, by the administrator, of the plaintiff’s demand, if it appear that the supreme court, on an appeal from the surrogate’s court, has made an order or judgment in terms merely reversing the decree in question, without specifying the grounds, this court will not inquire whether the appeal was such as to bring the decree up for review, or whether the reversal was not inadvertent^ Bedress against any error in the proceedings of the Supreme Court, in this respect, must be sought in that court.

(Before Moncrief, Robertson and Monell, JJ.)

Heard October 21, 1863;

decided December 5, 1863

This was an appeal by the defendants, Joseph H. Patten, James W. Wilson and Samuel W. Bridgham, who were the defendants in this action, from a judgment entered in favor of James A. Ruthven and John B. Jervis, who were the plaintiffs, suing as executors, &c. of James Ruthven, deceased.

The claim out of which the judgment appealed from in this case arose, was originally against John G-. Bailey, deceased, of whom one of the defendants (Patten) was administrator, in favor of the testator of the plaintiffs (James Ruthven) for two quarters’ rent, ending respectively in May and August, 1847. Bailey died in Brooklyn in April, 1847, and Patten was appointed his administrator in *June,*1847, by the surrogate of Kings county. In February, 1853, the testator of -the plaintiffs presented to the defendant Patten his claim in writing, stating its nature and amount, duly verified by his *417affidavit as to its justice and the non-existence of any payments or offsets. On such claim so verified, the defendant Patten then signed an indorsement in writing, *admitting it to be due by the estate of Bailey, and that a dividend would be paid on it as soon as various clo,ims should be settled and discharged.*The testator Ruthven died in November, 1855, leaving a will by and of which the plaintiffs were made executors thereof.

In -September, 1857, the plaintiff Ruthven, as executor, made a written application to the surrogate of Kings county, for an order requiring the defendant Patten both to render his account as administrator or show cause why an attachment should not be issued against him, and that such other proceedings might be had as might be requisite *to enforce the payment of the claim of the applicant.*Such application was verified, and set forth the indebtedness of Bailey, the grant of letters of administration to the defendant Patten, the filing by him of an inventory and the non-payment of such claim ; and asked for the order sought, to the end that Patten might be compelled to pay such claim; but it did not set forth any admission of the claim by the defendant. An order was made by the surrogate on such application, requiring the defendant to appear before him at a certain day, in November following, and *“ render an account of his proceedings as adminis*trator, or *show cause*why an attachment should not issue against him, and also *why he should not be decreed to pay the demand or claim of the applicant.”*

At the time fixed by the order, the defendant Patten appeared before the surrogate and filed á written answer to the application of the plaintiff Ruthven, duly verified by oath. In that answer he alleged *that Ruthven had no legal claims against the estate of Bailey;*that the testator Ruthven presented such claim *immediately after his appointment as administrator, which he refused to pay;*that he had *not seen Ruthven for six or seven years past,*and believed from what he said, *he intended to give it up,*and therefore the defendant had paid over what he had received from the estate to the *418next of kin. He also averred that *more than six years*had elapsed since an admission of the claim made by him in order to give the testator Ruthven a right to a dividend in the estate. His answer ended with a denial that the executors of the testator of Ruthven hád any legal claim upon the estate administered by the defendant, or had any right to require him to account.

After filing his answer, the counsel for the claimant put in evidence the defendant’s written admission before mentioned, and the hearing of the matter was adjourned. At the adjourned day the hearing was again adjourned, and on the day of the second adjournment, in November, 1857, the defendant failed to appear. An affidavit by the plaintiffs, denying some part of the defendant’s affidavit, was filed, and the inventory of the estate was put in evidence. No account was taken or required, but the surrogate made a *decree that the defendant pay the claim of the*applicant, *with interest*and costs. In March, 1854, the defendant applied to the surrogate to amend his decree or order and minutes so as to conform to certain facts alleged in a petition and affidavit made by him, and to have the decree of November previous opened; which application was refused, and an order made to that effect by the surrogate.

In May, 1858, the defendant Patten filed a petition of appeal to the Supreme Court, wherein, after stating the November decree and the March order, he prayed that the minutes of the surrogate might be corrected so as to conform to the facts stated therein, and that his default, if any, might be opened, and *11 said order”*(without.specifying which) set aside and for other relief. In such petition he also set forth the granting of letters of administration to him, the citation issued to him to render an account on a certain day, the filing of his answer on'that day, averring that such claim was barred by the statute of limitations, and was illegal; the adjournment of the hearing of such matter, and a proposal by counsel on the adjourned day to appear for such defendant, which was refused by the surrogate. That the decree was made, *419and no entry of such offer to appear was made in the minutes. That such order *transcended the jurisdiction*of the surrogate. That he had applied to correct such minutes and order, and was refused by the March order. The answer of the plaintiffs to this petition of appeal controverted the fact of such appearance and offer to appear by counsel until after the decree had been made; but admitted the citation and decree, as alleged. It also alleged that *their claim was just,*and that the administrator *having failed to show cause,*was ordered to pay it. In April previous, the defendant had filed and served a notice of appeal from the order entered in March, 1858, in this matter, “denying the motion of the administrator to amend the minutes in said matter *and*the erder or decree entered therein,” in November, 1857, “ *and*to open the default (if any) therein, and from the whole and every part thereof.”

In May, 1859, an entry was made in the minutes of the general term of the Supreme Court of the district, entitled *In the appeal*of the defendant from such proceedings, and declaring the “Decree of the surrogate of Kings county *reversed*without costs.” On the same day an order *or judgment*was entered at such general term, which recited the submis- • sion of such matter at a general term before certain justices in February previous, and “that it appeared to that court that the answer which the present defendant had put in, before the surrogate, *substantially contained a plea of the statute of limitations and a denial of the validity of the claim*of the present plaintiff, and that such surrogate made a decree directing the payment of such debt, and *that the appeal which the administrator had taken was from that decree as well as from the order refusing to open his default.”*Then followed in such order or judgment an apparent extract from the opinion of the court; reasoning against the right of surrogates to try the validity of claims where they are disputed by the executors or administrators, and citing various authorities. It then proceeded as follows: “ The decree of the surrogate in the present ease was, *therefore beyond his powers,*and must *420for that, reason be reversedand ended with the words, *“*and inasmuch as we reverse for a want of jurisdiction in the court below, we do so without costs.”

An order was obtained in July, .1859, to show cause why the appeal before mentioned should, not be reargued, and for such other relief as might be just, &c. on the ground' that *the decree*which such order of May, 1859, purports to reverse was not appealed from; and that the court made it under a mistake. On showing such cause, an order was made in September, 1859, containing no reasons, but ordering *such cause to be reargued at a general term,*and *proceedings on the part■ of the appellant stayed.*In February, 1862, an order was-made by the Supreme Court at a general term, on default of the defendant, decreeing that the order made by the surrogate ' of Kings county in March, 1858, (“ being the order from which this appeal was taken,”) should be, and was thereby *affirmed,*with $10 costs.

In December, 1857, a certified statement of the decree of such- surrogate, of November, 1857, was filed in the office of the clerk of New York county, and an execution was issued in .March, 1858, thereon to the sheriff of that county, by whom it was duly returned wholly unsatisfied. And on the application of the plaintiffs and proof of such judgment, execution and return, the surrogate assigned the administrator’s bond of the defendant Patten on which his co-defendants are sureties, to be sued;.and the present.action was brought thereon. ■

The complaint sets forth the grant of letters of administration on the- estate of Bailey, to the defendant Patten; the execution of his bond by himself and his co-defendánts, in the usual form required by statute, for the faithful perforananee of his duties; the existence of a valid claim by the testator of the plaintiffs against Bailey, the presentation of such claim by such testator to the defendant Patten, his written admission of such claim, the death of the testator of the plaintiffs, and his appointment of them as his executors, the application by the plaintiffs to the defendant for payment, *421their application to the surrogate of Kings county which was stated to be to show cause only why he should not pay the plaintiffs’ claim, the issuing of the citation, the subsequent decree of the surrogate, of November, 1857, against the defendant, the issuing by him of a certificate containing the substance of such decree and its filing and docket in the New York county clerk’s office, the issuing of execution thereon to the sheriff of New York county and its return by him unsatisfied, the failure of the defendant Patten to pay such decree, the application to the surrogate for such bond for prosecution, and his order to that effect, and a request to the sureties to pay the debt.

The original answer of the defendants denied the proper filing of any certificate in the New York county clerk’s office, and the validity of any judgment or order and execution against the defendant Paiten. It alleged that Patten never made the default, on which the surrogate’s order purports to be founded, but that he appeared pursuant to the surrogate’s citation, denied the right of the plaintiffs to call him to account, alleged the insolvency of the estate and the existence of other creditors of equal rank, denied the validity of the plaintiffs’ claim, and the jurisdiction of the surrogate—leaving them to a suit at law in the proper court—that the surrogate made the order illegally, that the defendant Patten appealed from the order to the general term of the Supreme Court, who reversed the same, that Patten filed a copy of such reversing order with the surrogate, and that after-wards the plaintiffs put such cause on the calendar for re-argument, took the defendant Patten’s default which he has moved to open, and that such motion has been argued and not decided; such answer also alleged that there had been no accounting by Patten or allowance of his accounts by the surrogate. A supplemental answer was put in afterwards, in January, 1862, alleging that the defendant Patten’s default was opened on certain terms, which, upon appeal by him, was affirmed, and that he complied with such terms.

The issues thus formed were tried by the court at special *422term, without a jury. The court found as facts, (1st.) The administration of the defendant, Patten, and the execution of the bonds1 sued on. (2d.) The death of the testator of the plaintiffs and their executorship. (3d.) .An application by the plaintiffs to the surrogate of Kings county for a citation to the defendant, Patten, to.show cause why he should not pay such demand. (4th.) The decree of the surrogate, ordering the defendant, as administrator, to pay such demand. (5th.) The filing of the certificate of such decree in the New York county clerk’s office, and the issuing of the execution and its return wholly unsatisfied. (6th.) The assignment of the bond to the plaintiffs, By the surrogate, on the return of such execution,- to be prosecuted. (7th.) The filing by Patten of an affidavit on the return of the citation in opposition to such claim of the plaintiffs. (8th.) The amount, of interest. The conclusions of law applied by the court, were that the surrogate had jurisdiction of the plaintiffs’ claim against Patten, and .to make the decree or order made by him for its payment.

*E. P. Cowles,*for the defendants, appellants.

*J. A. Ruthven,*for the plaintiffs, respondents.

Robertson, J.

Beyond the personal responsibility of an administrator, the creditors, of an intestate, who has no real estate, have no other security for the faithful distribution of the assets of the deceased among them, than his bond given on issuing letters of administration, in double the value of the estate. ■ In case of the insolvency of the intestate, if one creditor could get judgment on such bond, for his own benefit alone, the whole' security might be exhausted by a few to the exclusion of the rest.

An administrator has a right, in an action at law against him, to show, that there are unsatisfied debts of a prior class, or unpaid debts of the same class, as that for which such suit is brought. (2 *R. S.*88, § 31.) In such case, judgment can only be rendered for whatever assets may remain after satisfy*423ing debts of a prior class, and be a just proportion of debts of the same class. *(Id.)*An execution can only issue against an administrator after rendering and settling an account of his administration, or on the order of the surrogate who appointed him. (2 *R. S.*88, § 32. *Id.*116, § 21.) After such account rendered, execution can only issue for such sum as may have appeared on the settlement of the former to be a just proportion of the assets applicable to such judgment. *(Id.)*The judgment creditor may apply to the surrogate for an order to show cause why such execution should not issue. (2 *R. S.*116, § 19.)

It is contended in this case, however, that another provision in the Revised Statutes gives a surrogate authority to decree the absolute payment of a debt, without a judgment, although contested, and without any account rendered or any inquiry into the condition of the estate, or amount of claims of a prior or the same class ; and that on the decree so made, the creditor in whose favor it was made has a right for his own exclusive benefit to recover the amount due upon the administrator’s bond. ,

That provision permits a surrogate, after six months from the time of granting letters of administration, to decree payment of a debt of the intestate, or a *proportional*part, and one year after such grant, the payment of a legacy or its *just proportional*part. (2 *R. S.*116, § 18.)

The first question that arises is whether the surrogate can ' try, on such an application, the merits of a disputed claim, and decree its payment on simply determining it to be due. If he can, he has far superior powers to a court of law, in which an execution can not issue until after an accounting, and then only for a proportionate part of the assets. This question is fully and ably discussed, and decided in the case of *Wilson*v. *Baptist Education Society,*(10 *Barb.*308, 316.) It had been previously analyzed by the vigorous mind of the late surrogate, Ogden, in the *Matter of Kent, (Day. Surrogate,*1st *ed.; App. p.*7, *ed. 1855,p.*507.) The cases of *Magee*v. *Vedder,*(6 *Barb. 352;) Matter of Jones,*(5 *N. Y. Leg. Obs.**424124;) *Disosway*v. *Bank of Washington,*(24 *Barb.*60;) *Andrews*v. *Wallege,*(8 *Abb. Pr.*425 ; *S. C.*29 *Barb.*350 ;) *Mills*v. *Thursby,*(11 *How.*126,) sustain the same principle; and lastly, the decision of the Supreme Court, at general term, in this very litigation, holds the same doctrinó. It is also held in these cases, that a dispute of the claim before the surrogate, a *contestatio litis,*takes away the jurisdiction. It would be a daring innovation to try to stem the current of such authorities; in fact it was not attempted on the argument. 1

It,is claimed, however, that the surrogate did not lose his jurisdiction : (1.) Because the claim had been passed upon, and *admitted*by the administrator, before the application. (2.) By the admission of assets by him sufficient to satisfy it, and the illegality of all others. (3.) By reason of contradictions in the administrator’s affidavit, and his failure to appear at the adjourned day. It is also contended that he had a right to compel an" account on the application .of a creditor whose claim had been' admitted.

It will be necessary in the first case to separate the jurisdiction of a surrogate to decree payment of debts,'or allow the issuing of an execution after an accounting, from .that which he exercises: in decreeing payment of an admitted debt' separate from all others.

The Revised Statutes, *(vol.*2, *p.*92, § 52,) provide that after *eighteen months*from the time of his appointment, an adrUinistrator" may be compelled to *render an account.*of’ his pro-' ceedings, by order of the proper surrogate, upon the application of any person having a demand against the estate of the deceased, and even *without such application.*The contest of the claim does not affect the jurisdiction, as the surrogate may order the account to be rendered, on his own motion. *(Kidd*v. Chapman, 2 *Barb. Ch.*414.) But the power of the surrogate on such an application ends with compelling the rendition of the account of proceedings, *(Westervelt*v. *Gregg, 1 Barb.*Ch. 469 ; *Smith*v. *Van Kuren,*2 *id.*473,) unless the creditor has a judgment at law, when he may, under the pro*425visions before cited (2 *R. S.*88, § 32 ; *Id.*116, § 21,) authorize an execution for a proper amount to be issued. Such an amount is not intended to accompany or assist the provision before referred to, by which a debt may be ordered to be paid in six months after the appointment, (2 *R. S.*116, § 18 ;) because it cannot be required until eighteen months after that time.

Upon the application of an administrator who has been cited to account by a creditor, or without it, the former may procure a final settlement of his account, (2 *R. S.*93, § 60 ; *Id.*95, § 70,) for which purpose he is to notify all persons interested. Only upon that settlement can the surrogate decree distribution, and determine any question as to debts and the sums to be paid thereon. (2 *R. S.*95, § 71.) There is no other statutory provision authorizing the surrogate to decree payment of specific debts, except the one previously referred to. (2 *R. S.*116, § 18.)

The case of *Hall*v. *Bruen,*(1 *Bradf.*435,) was upon an application by a creditor for an account, not for payment of a debt. In *Kidd*v. *Chapman,*(2 *Barb. Ch.*414,) the claim was in judgment. In *Flagg*v. *Ruden,*(1 *Bradf.*192,) the claim was not passed upon, but the exercise of jurisdiction refused. *In the Matter of Phyfe,*(5 *N. Y. Leg. Obs.*331,) it was held that the surrogate had jurisdiction to inquire into an admission of a debt; but it was on an accounting, not a petition for its payment.

The effect on the surrogate’s jurisdiction of an admission by an administrator of a debt on its presentation, when made with a view of having it referred if disputed, is not fully settled by the authorities. In the *Matter of Phyfe, (ubi supra,)*it was held that the fact of admission as well as of judgment, could be tried, and for that purpose the surrogate had jurisdiction. In *Johnson*v. *Corbett,*(11 *Paige,*265,) an admission of a debt is considered to have rendered its presentment for allowance unnecessary; but it was not determined whether such allowance did any thing more than affect the question of costs in an action for it, or the payment or dis*426•tribution of moneys for claims of inferior degree, or legacies or among next of kin. (2 *R. S.*89, § 39.)

If there was either such an admission in this case, proved before the surrogate, as gave him jurisdiction to decree payment, or if it was not denied, the Supreme Court at general term disregarded it as having no effect where the claim was disputed. They held, however, that the defendants’ answer contained substantially a plea of the statute of limitations, and a denial of the validity of the claim. The decree of the surrogate after reciting that application for • a citation, its issue and service, the adjourment of the hearing and the failure of the administrator to appear and render an account, declares that it appeared to him, that the claim was justly due to the plaintiffs, and that there were assets sufficient in the defendants’ hands to pay all the just debts of the decedent; and orders the payment of the claim. The application to the surrogate was not founded upon any admission of the debt as a jurisdictional fact, but in what is called a *sworn reply*to the affidavit of the defendant, offered by way of answer in denial of the claim of the plaintiffs, a written admission was stated. This was offered in evidence on a previous day without such sworn reply being put in, and when the defendant was present; but such reply was put in afterwards, when he was absent. It does not, therefore, appear whether the Supreme Court considered such admission offered as mere evidence to sustain the claim, or as sustaining the jurisdiction. Even in regard to it, however, the defendant anticipating it, alleged it to have been given more than six years previous ; and that it was given for a particular purpose. There also does not appear to have been any evidence taken before the surrogate as to the amount of the assets or debts. The defendant’s answer in the surrogate’s court, shows he paid over most of the estate to the next of kin, long before he gave the admission, and that he refused the claim when it was first presented. It might, therefore, have been questionable whether a decree could have been made in the surrogate’s court, notwithstanding the admission, without disposing of numerous *427'questions of law and fact affecting the liability of the defendant as administrator.

But a still more important question arises, whether there was any legal existence of a decree by the surrogate, for the payment of the debt in question. The notice of appeal to the Supreme Court from the surrogate declares that the defendant appealed from the order of March, 1858, denying his motion to amend the minutes in such matter, *and*the decree of November, 1857, and to open the default therein, and from the whole and every part thereof. A question might have arisen on that whether the words, *the decree*of November were joined by the previous copulative *“and”*with the order of March, 1858, or *the minutes;*the subsequent words, *and to open,*would seem to make it refer to the latter. The order to show cause was in the same form, and the petition of appeal attacks the validity of the order of November, 1857, but only specifies as the relief sought, the setting aside the order of March, 1858, ond other relief. The answer to it, however, denies the order of November, 1857, to be erroneous. But the judgment of the Supreme Court declares expressly that the November decree was appealed from as well as the March order, and reverses it *without costs,*because such reversal was *founded on a want of jurisdiction*in the surrogate. That judgment has never been recalled or modified, unless the order for a reargument, or that affirming the order of March, 1858, does so. The former, of course, left the judgment to stand, until the reargument was heard. The latter affirmed only the last order refusing to correct the minutes or decree. It is true, it declared, as did the judgment of reversal, that the March order was appealed from, but not that the November decree was *not appealed from.*This court can not correct or revise the solemn adjudications of the Supreme Court. That court on the first argument declared what was appealed from, consisting of an order and decree ; and reversed the decree without disposing of the order, and on a subsequent default pronounced an affirmance of it', without interfering with the former judgment. While that court is still open for *428redress, it would be indecorous for us to pass upon the propriety of its records, if we could do so. If their judgment or second order did not conform to the views of the judges of that court, the application should, have been made then. This court can not determine what was appealed from, when that tribunal has necessarily had jurisdiction to pass upon .that question,, and has done so.

No facts have been found by the learned judge before whom this cause was tried, as to such appeal, judgment and order of the Supreme Court; and there is no contradictory evidence to impugn the records of them, if any could be received; but he has found that the defendant appeared before the surrogate and filed his affidavit *in opposition*to the claim of the plaintiffs, and has applied, as a conclusion of law, that the surrogate had jurisdiction of the claim, and to make the decree made by him. I think this was intended to be in opposition to the principles laid down in the cases before cited.

I think the judgment should be reversed and a new trial ordered, with costs to abide the event.

Moecbi’ee, J. concurred.

New trial granted.