only, at his election; except that where he has received compensation in one capacity, he is entitled to the ex cess, if any, of the compensation prescribed by law in the other capacity, above the sum which he has already received.

New. Drake . Price, 5 N. Y. 430: Matter of Carman, 3 Redf. 46: Hall v. Hall, 18 Hun, 358; s. c., 9 Week. Dig. 195.

2739. Surrogate may determine certain claims. Upon a judicial settlement of the account of an executor or administrator, he may prove any debt owing to him by the decedent. Where a contest arises between the accounting party and any of the other parties, respecting any property alleged to belong to the estate, but to which the accounting party lays claim; or respecting a debt, alleged to be due by the accounting party to the decedent, or by the decedent to the ac counting party; the contest must be tried and determined in the same manner as any other issue, arising in the surrogate's court.

2 R. S. 88,133 (2 Edm. 90); L. 1837, ch. 460, 37 (4 Edm. 494). Boughtone. Flint, 74 N. Y. 476; 5 Abb. N. C. 215; Gardner z. Gardner, 7 Paige, 112; Shakespeare v. Markham, 72 N. Y. 400; Terry r. Dayton, 31 Barb. 519; Adam's Estate, 1 Tuck. 109; Livingston v. Newkirk, 3 Johns. Ch. 312; Smith r. Christopher, 16 Abb. N. S. 332; 3 Hun, 585; 6 T. & C. 288; Kyle v. Kyle, 67 N. Ý. 400; Jumel ». Jumel, 7 Paige, 591: Merchant r. Merchant, 2 Bradf, 432; Vulte e. Martin, 44 How. Pr. 18; Matter of Flood, 16 Abb. N. S. 407: Hopkins . Van Valkenburgh, 16 Hun, 3; Leviness r. Cassebeer, 3 Redf. 491; Matter of Leslie, id. 280; Everts v. Everts, 62 Barb. 577; Stilwell . Carpenter, 59 N. Y. 414; Bevan v. Cooper, 72 id. 317.

2740. Effect of the statute of limitations on such claims. From the death of the decedent, until the first judicial settlement of an account of his executor or administrator, the running of the statute of limitations, against a debt due from the decedent to the accounting party, or any other cause of action, in favor of the latter against the decedent, is suspended, unless the accounting party was appointed upon the revocation of former letters issued to another person; in which case, the running of the statute is so suspended, from the grant of letters to him, until the first judicial settlement of his account. After the first judicial settlement of the account of an executor or administrator, the statute of limitations begins again to run against a debt due to him from the decedent, or any other cause of action in his favor against the decedent.

L. 1837, ch. 460, 37, amended; L. 1868, ch. 594 (7 Edm. 320). House v. Agate, 3 Redf. 307; Rogers v. Rogers, 3 Wend. 503; Matter of Rogers, 11 N. Y. Leg. Obs. 245; Broome v. Van Hook, 1 Redf. 444; Gilchrist r. Rea, 9 Paige, 66 Wilcox v. Smith, 26 Barb. 316; Treat . Fortune, 2 Brad, 116; Boughton v. Flint, 74 N.Y. 476; 5 Abb. N. C. 215.

$2741. Surrogate may allow for property lost, etc. -Upon a judicial settlement of the account of an executor or administrator, the surrogate may allow the accounting party, for property of the decedent, perished or lost without the fault of the accounting party.

2 R. S. 93, 56 (2 Edm. 95). Baskin v. Baskin, 4 Lans. 90; Furman v. Coe, 1 Cal. Cas. 96; Matter of Pollock, 3 Redf. 100; see Shuttleworth v. Winter, 55 N.Y. 624; Trustees of Harvard Coll. v. Quinn, 3 Redf. 514.

$2742. Effect of judicial settlement of account.A judicial settlement of the account of an executor or administrator, either by the decree of the surrogate's court, or upon an appeal therefrom, is conclusive evidence, against all the parties who were duly cited or appeared, and all persons deriving title from any of them at any time, of the following facts, and no others; 1. That the items allowed to the accounting party, for money paid to creditors, legatees, and next of kin, for necessary expenses, and for his services, are correct.

2. That the accounting party has been charged with all the interest for money received by him, and embraced in the account, for which he was legally ac countable.

3. That the money charged to the accounting party, as collected, is all that was collectible, at the time of the settlement, on the debts stated in the account.

4. That the allowances made to the accounting party, for the decrease, and the charges against him for the increase, in the value of property, were correctly made.

Id., 65, amended. McNulty v. Hurd, 72 N. Y. 518; Tucker r. Tucker, 4 Keyes, 136; Bevan v. Cooper, 72 N. Y. 317; Shakespeare e. Markham,, 400; Magee v. Veeder, 6 Barb. 52; Disosway e. Bank of Washington, 24 id. 60; Andrews r. Wallace, 29 id. 350; Cooper . Felter, 6 Lans. 455, Leviness e. Cassebeer, 3 Redf, 491; Matter of Leslie, id. 280; Garvey e. McCue, id. 313; Brick's Estate, 15 Abb. Pr. 12; Brown e. Brown, 53 Barb. 217 Paff v. Kinney, 1 Brad. 1; Bank of Poughkeepsie v. Has brouck, 6 N. Y. 216; Fulton . Whitney, 66 id. 548; s. c., 5 Hun, 16: Johnson . Richards, 3 id. 454; Dana's Estate, 1 Tuck. 113; Wurts e. Jenkins, 11 Barb. 546; Thayer v. Clark, 48 id. 243; s. c., 41 N. Y. 620; Brown . Brown, 53 Barb. 217; Stiles e. Burch, 5 Paige, 132: Paff v. Kinney, 5 Sandt. 380: Gill e. Brouwer, 37 N.Y. 549; 31 How. 125; Churchill r. Pres cott. 3 Brad. 233; Thompson . Brown, 4 Johns. Ch. 619; Totten's Estate, 1 Tuck. 115; Sippérly v. Baucus, 24 N. Y. 46; Hood v. Hood, 19 Hun, 300.

2743. Decree for payment and distribution. Where an account is judicially settled, as prescribed in this article, and any part of the estate remains, and is ready to be distributed to the creditors, legatees, next of kin, husband, or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. If any person, who is a necessary party for that purpose, has not been cited or has not appeared, a supplemental citation must be issued, as prescribed in section 2727 of this act. Where the validity of a debt, claim, or distributive share, is not disputed, or has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same. With respect to the matters enumerated in this section, the decree is conclusive upon each party to the special proceeding, who was duly cited or appeared; and upon every person deriving title from such a party.

Id., 71. Fowler e. Lockwood, 3 Redf. 465; Matter of Pollock, 8 id. 100; Hoskin v. Teller, id. 316; Fowler v. Lockwood, id. 465; Adair v. Bremmer, 74 N.Y. 539; Nichols r. Chapman, 9 Wend. 452; Clayton v. Wardell, 2 Bradf. 1; Johnson v. Corbett, 11 Paige, 265; Wilcox v. Smith, 26 Barb. 316; Isenhart r. Brown, 2 Etw. 341; Tradesmen Nat. Bank v. McFeely, 61 Barb. 552; Salter v. Neaville, 1 Bradf. 488; Babcock v. Lillis, 4 Brad.218; 4 Abb. 272: Payne e. Matthews, 6 Paige, 19; Johns' Estate, 1 Tuck. 126; Mount . Mitchell, 31 N. Y. 356; 19 Abb. 1; Bernes v. Weisser, 2 Brad. 212; Hovey . Smith, 1 Barb. 372; Cooper v. Felter, 6 Lans. 485; Harris v. Meyer, 3 Redf. 450; Goodyear v. Watson, 14 Barb. 481; Barlow v. Yeomans, 50 id. 187; Brown e. Public Administrator, 2 Bradf. 103; Ainslie r. Radcliff, 7 Paige, 439; Stevenson v. Weisser, 1 Brad. 343; Johnson v. Corbett, 11 Paige, 265. Payment of legacies. - Orton e. Orton, 3 Abb. Ct. App. Dec. 411; 3 Keyes, 46; Matter of Williams, 12 N. Y. Leg. Obs. 179; Ex parte McComb, 4 Brad. 151; Bath e. Ammerman, id. 129; Boughton e. Flint, 74 N. Y. 476; 5 Abb. N. C. 215; Clark v. Bogardus, 2 Ew. 37; Stagg v. Beekman, id. 89; Matter of Leslie, 3 Redf. 280; Soverhill v. Suydam, 59 N. Y. 140; Clapp 2. Meserole, 1 Abb. Ct. App. Dec. 361; 1 Keyes, 281; Wilcox e. McCarthy, 3 Bradf. 284; Wilkes v. Harper, 1 N. R. 586; McLoskey v. Reid, 4 Bradf, 334; Dustan r. Dustan, 1 Paige, 509; Campbell e. Cowdrey, 31 How. 172; Bradner e. Faulkner, 12 N. Y. 474; Lawrence v. Embre, 3 Brad, 364; Morris v. Kent, 2 Edw. 175; Williamson v. Williamson, 6 Paige, 295; Van Brammer v. Hoffman. 2 Johns. Cas. 200; Cooker. Meeker, 42 Barb. 533; Pierce r. Chamberlain, 41 How. 501; Fish's Estate, 19 Abb. 209; Pierpont . Edwards, 25 N. Y. 128; 24 How. 419; Trustees of Harvard Coll. v. Quinn, 3 Redf. 514; Matter of Pollock, id. 100. Assets; how distributed. -2 R. S. 96, 2 75, and following sections; Black's Estate, 1 Tuck, 145; Burr v. Sherwood, 3 Brad. 85; Furniss v. Furniss, 51 How. 64; Ferrie v. Public Administrator, 3 Bradf. 249; Hill v. Nye, 17 Hun, 457; Suckley's Estate, 11 id. 344; Adee v. Campbell, 20 Alb. L. J. 454; 8. c., 14 Hun, 551; Gazlay . Cornwell, 2 Redf. 139; Sweezey v. Willis, 1 Bradf. 495; Wood r. Keyes, 8 Paige, 365; Shultz v. Pulver, 3 id. 182; 11 Wend. 361; Thomson r. Carmichael, 3 Sandf. Ch. 120; Terry r. Dayton, 31 Barb. 519; Hays . Hibbard, 3 Redf. 28; Hine v. Hine, 39 Barb. 507; Sandford v. Sandford, 5

Lans. 486; 61 Barb. 293; Bruce v. Briscom, 9 Hun, 280; 70 N.Y. 612; Camp v. Camp, 18 Hun, 217; Langdon e. Astor, 16 N. Y. 9; Dougherty e. Dougherty, 7 Alb. L. J. 347. Powers of surrogate on accounting.Payner. Matthews, 6 Paige, 19; Jumel v. Jumel, 7 d. 591; Stevens r. Stevens, 2 Redf. 265; Stilwell e. Carpenter, 59 N. Y. 414; Peck r. Sherwood, 56 id. 615; Bloodgood r. Sears, 64 Barb, 71; Everts e. Everts, 62 id. 577: Townsend . Whitney, 75 N. Y. 425; Bevan e. Cooper, 72 id. 317; Dubois v. Sands, 43 Barb. 412.

$2744. Id.; when specific property may be delivered. In either of the following cases, the decree may direct the delivery of an unsold chattel, or the assignment of an uncollected demand, or any other personal property, to a party or parties entitled to payment or distribution, in lieu of the money value of the property:

1. Where all the parties interested, who have appeared, manifest their consent thereto by a writing filed in the surrogate's office.

2. Where it appears that a sale thereof, for the purpose of payment or distribution, would cause a loss to the parties entitled thereto.

The value must be ascertained, if the consent does not fix it, by an appraisement under oath, made by one or more persons appointed by the surrogate for the purpose.

2 R. S. 95, 72 (2 Edm. 99), amended; L. 1870, ch. 30.

$ 2745. Id.; when money may be retained.- Where an admitted debt of the decedent is not yet due, and the creditor will not accept present payment, with a rebate of interest; or where an action is pending between the executor or administrator, and a person claiming to be a creditor of the decedent; the decree must direct that a sum, sufficient to satisfy the claim, or the proportion to which it is entitled, together with the probable amount of the interest and costs, be retained in the hands of the accounting party; or be deposited in a safe bank, or trust company, subject to the surrogate's order; or be paid into the surrogate's court, for the purpose of being applied to the payment of the claim, when it is due, recovered, or settled; and that so much thereof, as is not needed, for that purpose, be afterwards distributed according to law.

2 R. S. 96, 274 (2 Edm. 99). Harman v. Durham, 3 Wend. 367: Close v. Van Husen, 19 Barb. 505; Howland e. Hecksher, 3 Sandf. Ch. 519: Downing v. Marshall, 1 Abb. Ct. App. Dec. 525; Hoyt e. Bonnett, 50 N. Y. 538.

Where a distributive

2746. Id.; share of infant. share is payable to an infant, the decree must direct, either that it be paid to his general guardian, to be applied to his support and education; or that it be invested for his benefit, as prescribed by law with respect to a legacy to an infant, and with the like authority to apply the interest, and subject to the same obligations; or that a portion thereof be so paid, and the remainder be so invested.

Id., 80, amended.

2747. Legacy, etc., to unknown person to be paid into State treasury. Where the person entitled to a legacy or distributive share is unknown, the decree must direct the executor or administrator to pay the amount thereof into the treasury of the State, for the benefit of the person or persons who may thereafter appear to be entitled thereto. The surrogate, or the supreme court, upon the petition of a person claiming to be so entitled, and upon at least fourteen days' notice to the attorney-general, accompanied with a copy of the petition, may by a reference, or by directing the trial of an issue by a jury, or otherwise, ascertain the rights of the persons interested, and grant an order directing the payment of any money, which appears to be due to the claimant, but without interest, and deducting all expenses incurred by the State with respect to the decedent's estate. The comptroller, upon the production of a certified copy of the order, must draw his warrant upon the treasury, for the amount therein directed to be paid; which must be paid by the State treasurer, to the person entitled thereto.

Id., 81, amended; L. 1877, ch. 456.

§ 2748. When legacy, etc., to be paid to county treasurer. The decree must also direct the executor or administrator to pay to the county treasurer a legacy or distributive share, which is not paid to the person entitled thereto, at the expiration of two years from the time when the decree is made, or when the legacy or distributive share is payable by the terms of the decree. The money, so paid to the county treasurer, can be paid out by him only by the special direction of the surrogate; or pursuant to the judgment of a court of competent jurisdiction.

Id., part of 81.