Estate of Brown. some competent tribunal, and of some tribunal, of course, other than the surrogate's court itself. [16] Secondly. The terms "debt, claim or distributive share," as used in section 2743, are designed to comprehend every species of claim or demand against a decedent's estate, which may be, or can be, preferred by any individual belonging to any of the classes of persons previously enumerated in that section, i. e., by any creditor, or legatee, or next of kin, or husband, or wife of decedent, or by the assignees of any one of [] such persons. Indeed, the word "debt," of itself, must be deemed to have a significance almost as broad as this, if we are to heed its definition in section 2514. "The word 'debts,'" says that section, "includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action." [19] * * * Thirdly. That a dispute about the validity of any such debt, claim, or distributive share, whose payment is sought to be obtained or secured at a final accounting, is a dispute about whether the right to such debt, claim or distributive share, at the time, exists. [19] Fourthly. That accordingly, whenever one, as next. of kin, or legatee, claims upon a final accounting a share in the decedent's estate, and the accounting party disputes his claim, and interposes against it a release or an assignment, which is assailed by its maker as invalid and ineffectual by reason of fraud, a contingency has arisen which requires the surrogate, in obedience to section 2743, to hold in abeyance his decree of distribution, so far, at least, as concerns that interest in the estate to which such assignment or release relates, until the rights of the parties can be determined in another forum. [20] If the provisions of the Revised Statutes were still in force, it might be claimed with some show Estate of Brown. of reason, that the surrogate's right to determine a controversy between an accounting executor or administrator and a person claiming as legatee or next of kin, touching the validity and effect of a release or assignment to the accounting party himself, might be defended as within the spirit, if not the letter, of recent decisions of the court of appeals. See, for example, the cases of Kyle v. Kyle, 67 N. Y. 400, 408; Shakespeare v. Markham, 72 N. Y. 400; Boughton v. Flint, 74 N. Y. 476, which lend some support to the notion that whatever claims of interest in an estate its executor or administrator sets up may be passed upon by the surrogate. [21] But section 2739 of the Code seems to have established certain restrictions in this regard, which are too plain to be overlooked. It provides, that a contest between the accounting party and any other party in interest may be determined by the surrogate, when it relates to a debt alleged to be due by such accounting party to the decedent, or by the decedent to the accounting party, or when it relates to property of the estate to which the latter lays claim. The provision is manifestly too narrow to include such cases as the present. Ilaving no power to pass upon the validity of either the release in the Brown estate or of the assignment in the estate of Bauer, what disposal ought I to make of the objections which have in each case been interposed? It is insisted by the accounting parties, that the claims of the objectors to appear as such should be denied, and that the proceedings should be conducted to a final decree as if their objections had not been filed. But would not such a course imply an assumption. that the instruments whose validity is attacked are in fact valid? In other words, would it not, practically, involve just such a determination of their validity as the court has no right to make? Estate of Brown. It seems to me that one or the other of two courses should be taken for protecting the rights of all [2] parties in such controversies as these. Either the inquiry into the correctness of the accounts should be postponed until an adjudication is had in the matters as to which the court lacks jurisdiction, or if the inquiry is suffered to proceed, every person who claims a share or an interest in the estate should be allowed to take part therein, despite the fact that he is alleged to have assigned or released such share or interest, provided that he interposes allegations of fact disputing the validity of such assignment or release, and that but for such assignment or release he would be entitled to such interest or share, Thomson v. Thomson, 1 Bradf. 24; Burwell v. Shaw, 2 Bradf. 322; Dickson's Estate, 11 Philadelphia, 86; Wistar's Estate, 12 Philadelphia, 48; Kenny v. Jackson, 1 Hagg, Eccl. 105; Martine's Estate, 11 Abb., N. C., 50; Giles' Estate, 11 Abb., N. C., 57; Buchan v. Rintoul, 70 N. Y. 1. Which of these two courses should be pursued in any given case must depend upon a variety of circumstances that need not be here considered or enumerated. [23] In both of the present proceedings, I have decided to permit the contests to go on at once. Orders may, therefore, be presented for submission to a reference of the accounts and of the objections thereto. Estate of Batchelor. ESTATE OF WILLIAM A. BATCHELOR, Deceased. SURROGATE'S COURT, County of New York; JANUARY, 1883. S$ 2697-2699, 2643, 2644. When letters of administratian with will annexed cannot be granted.— When such ancillary letters cannot be.- Where persons having prior right to such letters of administration have not renounced, what petition must pray for.- Who must be cited.-How such proceeding is properly instituted.— Petition must pray for petitioner's Where, on the petition of decedent's executrix, who claimed to be, as such, a creditor of decedent's estate, it appeared that the will of the decedent had been admitted to probate in another state, and that letters testamentary had been issued thereon to the wife of the decedent, and that an exemplified copy of the will had been filed in the office of the surrogate of the county of New York, in which county, it was alleged, there were unadministered assets of the estate; that the said wife of decedent had been cited to appear and qualify, but failing so to do, an order had been entered declaring her to have renounced; that thereafter, on petition, citations were issued to the next of kin and heirs at law to show cause why letters of administration with the will annexed should not be granted, and that only one of the persons so cited had appeared, and the proceedings had been discontinued by a withdrawal of such petition, and the present petition prayed for the issuing of only one citation, and that to the person who had appeared as aforesaid, requiring him to show cause why letters of administration with the will annexed should not be issued to the public administrator of the county of New York,- Held, that under the facts of this application, the surrogate was not warranted in granting either ancillary letters of administration with the will annexed, or original letters of administration with the will annexed; ['] That ancillary letters could not be granted, because the application was not brought within §§ 2697-2699 of the Code, which provide to whom such letters may be granted, and prescribe the steps necessary to be taken in order to procure the same; and that no title to such letters had been shown either by the petitioner or by the public administrator, in whose behalf the petitioner moved; [2] Estate of Batchelor. That if it be assumed in such a case that original letters of administration with the will annexed might lawfully be granted on proper application, the papers in this proceeding would not justify such grant, for the petition prayed that a citation be issued to only one of the next of kin or heirs at law to show cause why letters should not be granted to the public administrator, and the citation was accordingly issued; whereas section 2644 of the Code provides that, unless every person having a prior right to such letters has renounced, the petition must pray that all persons having a prior right, and who have not renounced, be cited to show cause why administration should not be granted to the petitioner. [3] To properly initiate such proceedings, the petitioner should have asked for her own appointment, and have cited the public administrator and all persons entitled to priority in the grant of letters, to show cause. [*] Motion by respondent to dismiss a petition. Bagley & Thain, for respondent and motion. Marshall & Benson, for petitioner and opposed. ROLLINS, Surrogate.-In February last, Mary A. Batchelor,, executrix of one Charles Batchelor, deceased, and claiming to be, as such, a creditor of decedent's estate, presented to the surrogate a petition alleging that the will of decedent had been admitted to probate in the State of Maryland, and that an exemplified copy thereof had been filed in this court. The petition also averred, that testamentary letters had been issued in Maryland to decedent's widow, Lucretia A. Batchelor; that there were unadministered assets of the estate in the county of New York; that decedent had left him surviving several next of kin and heirs at law, whose names were set forth; that Lucretia A. Batchelor had been cited to appear and qualify as executrix or show cause why she should not be deemed to have renounced that she had failed to appear, and that thereupon an order had been entered declaring her to have renounced. The petition |