BLOODGOOD vs. BRUEN.

estate, it should be his duty to reserve, as well for the creditors of the late firm of Thomas H. Smith & Son as for the other creditors mentioned in the previous decree, "the due and proper proportion of the assets of said estate, to which such partnership creditors might be entitled in due course of administration."

On the 7th of September, 1850, the executor presented his petition to the Supreme Court, in the suit of Iddings v. Bruen, asking for further directions "in respect of the claims of other creditors of the said estate, and in respect of any surplus of the said estate after the payment of said debts, to the end that it may be ascertained what are the debts of said estate, and to whom payable, and the amount payable to each creditor, and the pro-rata distribution of said estate among said creditors; and that it may also be ascertained, whether after the payment of the debts of said estate there will be any surplus of said estate, distributable under the will, and the amount of such surplus, &c :" and that, "by advertisement or otherwise under the order of the Court, the creditors of the estate may be ascertained; and that it may be referred to a suitable referee to take proof concerning said debts, and concerning all claims upon estate, and to pass the accounts of the petitioner under the decree in said cause, and to ascertain and determine the amount still further payable to H. E. D. under said decree, and the amount to be reserved by the petitioner, to meet or to be paid upon the other debts of or claims upon the estate, and to ascertain and determine the amount of any surplus which will remain in his hands after the payment of the debts of said estate."

the

Upon this petition, an order was made referring it to a referee "to ascertain who are or claim to be creditors of the estate of the said Thomas H. Smith, deceased; to take proof concerning their demands respectively; to examine and pass the accounts of the said petitioner under the decree in this cause; to ascertain and determine the amount still further payable to H. E. D. under the said decree,

BLOODGOOD vs. BRuen.

and the amount which ought to be reserved by the said petitioner, to meet or to be paid upon the other debts of or claims upon the estate of Thomas H. Smith, and to ascertain and determine whether, if, after the payment of the debts of the said estate, any and, if any, what surplus of the estate will remain in the hands of the petitioner for distribution under the will, &c." The order provided for the usual notice, and advertisement to creditors to exhibit their demands, and for payment to H. E. D. of his proportion in due course of administration.

This order was amended on the 23d day of September, 1850, so that the payments made to H. E. D. should not be allowed the executor as a conclusive credit, unless the same were properly made in due course of administration.

Under these orders, the petitioner, Bloodgood, has appeared before the referee and presented his claim. His counsel allege, that his appearance there was under protest. I think it immaterial whether he appeared under protest or not. He certainly had a right to appear and protect his interest; and if that proceeding is not one in which he can have a decree or order for the payment of his demand when established, his appearance cannot prejudice him so as to prevent his obtaining his rights in due course of law.

Neither the institution of the Iddings suit, nor the decree therein, nor the petition of the executor, nor the orders thereon, nor the subsequent proceedings before the referee, have ousted the Surrogate of his jurisdiction. None of these proceedings are formally instituted in behalf of creditors, and no provision is made in the decree or orders, for the payment of the claims of creditors, or allowing them to apply for payment under the decree. The frame of all the proceedings is precisely in consonance with what takes place in the suit of a creditor for his own benefit; and the account directed is merely for the purpose of ascertaining the amount due the plaintiff, and not for the purpose of distribution. I have looked into the prece

BLOODGOOD vs. BRUEN.

dents, and find that the usual directions contained in a decree for the administration of an estate, are to take an account, and to advertise for creditors to come in and prove their debts; and the decree declares that such creditors as do not come in shall be excluded from the benefit of the decree; and also, expressly directs that the estate be applied in due course of administration, and that any of the parties may be at liberty to apply to the court under the decree. (2 Smith, Ch. Pr., 276, 330.) These provisions are not made for the benefit of the creditors of Thomas H. Smith, in the proceedings before me. The suit instituted by Iddings, was not in form an administration suit; that character has not been given to it by any of the orders, or subsequent proceedings; and up to this moment, there is no formal provision or direction, giving the creditors a right to distribution. The pendency of that accounting, therefore, it being, in its present shape, only for the benefit of certain, and not all the creditors, is no reason why the other creditors should be inhibited from collecting their demands, and having the account necessary for that purpose, in a suit of their own institution and under their own control. If the executor had asked for a final accounting and a decree for distribution in the Iddings suit, and had obtained an order for that purpose, other proceedings would have been unnecessary and improper. He has not done so; and the petitioner in this case must, in order to recover his demand, prosecute the executor in some form or other. It is no answer to the present application that the executor must be exposed to an accounting whenever any creditor institutes suit; because such an evil as that can be obviated by the executor at any moment, by asking for a final account and distribution.

While I am clear that no such decree has been made in the Iddings suit as should deter any court having jurisdiction, from entertaining it, at the suit of any other creditor, and that the appearance of the creditors before the referee, and the proof of their debts, does not under the terms of

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the order for an account, entitle them to relief in that proceeding, and therefore, does not exclude them from obtaining proper relief in the Supreme Court, or in any other court having jurisdiction; I am still disinclined, unless it shall be necessary, to put the executor to the expense and trouble of a double accounting. It is the privilege of the executor, on being directed to account, either before the Surrogate or in any other court, to ask for a final accounting and administration of the estate. If he fail to ask for and secure this privilege in a suit instituted by a creditor for his sole benefit, it is his own fault that he is put to inconvenience by the institution of a suit by another creditor. If it be the design and intention of the present reference and accounting pending in the Supreme Court, to have such a final accounting and administration of the estate, there is no good reason why it should not be formally expressed in some way or other, upon the face of the proceedings; and should that be done, then every consideration of propriety and convenience is in favor of the administration of the fund, and the settlement of the executor's accounts by the Supreme Court.

I have, therefore, come to the conclusion, to order the executor to account before me, unless within a reasonable time he procures such a modification of the order of September 7, 1850, in the Iddings suit, as shall in terms secure to the creditors of Thomas H. Smith, the right on proof of their claims, to compel payment in due course of administration.

EX PARTE, BROWN.

EX PARTE, BROWN.

In the matter of the Estate of DORCAS M. REMSEN, deceased.

The direction of the statute, that administration with the will annexed shall be granted to the residuary, general, or specific legatees, or to the widow or next of kin, or to creditors "in the same manner and under the like regulations and restrictions, as letters of administration in case of intestacy," makes it necessary to require a bond with sufficient sureties, in all cases-as well where the grant is made to a legatee as where it is made to the widow, next of kin, or creditors. The section requiring "every person appointed administrator" to execute a bond, includes an administrator with the will annexed. In general, the term "administrator," in the statutes relative to the estates of deceased persons, includes "administrators with the will annexed;" and the latter are subject to all the provisions applicable to administrators generally, except so far as the distribution of the estate is directed by the will.

A. R. DYETT, for Administratrix.

THE SURROGATE. The will of the deceased has been proved before me, and the executor having renounced, one of the legatees applies for letters of administration with the will annexed, and claims that the same should be granted without any bond being required. The section of the statute under which this application is made, provides that if all the persons named in a will as executors, shall renounce, or after being duly summoned to appear and qualify, shall neglect to qualify, or shall be legally incompetent, then letters testamentary shall issue, and administration with the will annexed be granted, as if no executors were named in such will, "to the residuary legatees or some or one of them, if there be any; if there be none that will accept, then to any principal or specific legatee, if there be any; if there be none that will accept, then to the widow and next of kin of the testator, or to any