Bradley, J.:
This proceeding was instituted by the petition of the appellant for his accounting as executor, etc., of Edward G. Van Houten, deceased, who died in April, 1894. He had for some years been ^engaged in the livery business at Nyack, N. Y., which business was ■conducted for him by -his- brother Erastus. By his will the testator devised certain premises to his wife Anna L., and his daughter .Della Van Houten, and gave to his brother Erastus “all horses, carriages and robes, harness and all personal property used in and in connection with the said livery stable and the business therein conducted and the good will of the said business,” and directed that the remainder of his estate be used first in payment of his debts, and .that, if it should be exhausted, the legacy given to his brother Erastus ■“next be liable for such debts’remaining unpaid.” He nominated his brother Erastus, his wife Anna L. and his daughter Della Van Houten to be executors of his will, and gave - them power to .sell his real estate. Letters testamentary were, issued to them in April, 1894. The personal estate of the testator was appraised, at $6,621.03, of which the sum of $3,202.94 constituted the appraised value of the horses, carriages and stock in the livery stable. After the death of the .testator the appellant took possession of the livery property ¡and carried eh the business with it. The gross receipts of the business from April 19, 1894, to April 1, 1896, amounted to $23,039. By the decree in question the appellant was charged with .the .amount of the inventory....................... $6,621 03 With sum increase and' rents, collected...........223 00 And with gross receipts of the livery stable business
conducted since the death of the testator........... 23,039 00
$29,883 03
And credited with amount of
Purdy mortgage........................ $236 53
With funeral expenses...................’ ISO 75
.With taxes, interest, insurance and repairs. 2,465 63
- 2,882 91
Balance......................................... $27,000 12
The decree is ¡so far interlocutory as to declare to, the effect that "it “ appearing that- the said executor may possibly have incurred [303]*303expenses in the administration of the estate for which he may be entitled to a credit, which expenses are not set forth at large or claimed in his account, and that a portion of certain debts of the estate have been paid by him, a credit for which at the sum claimed by him in his account has been hereby disallowed,” it is ordered and decreed that he “ have leave to account at the foot of this decree for all such expenses incurred by him, and that he receive a credit upon this accounting for so much thereof as may be legally allowable, and for so much of the credits hereby disallowed as shall appear to be the amount of the dividend which the said creditors would have received had they been paid proportionately with the other creditors herein,” and that unless he shall, within twenty days, proceed “ to institute such proceedings upon the foot of this decree as are herein provided for, his said accounts shall be finally judicially settled and allowed as stated in the summary statement included herein.”
It is with some force urged on the part of the respondents that this determination of the surrogate is neither a decree or an order within the statutory meaning of those terms (Code Civ. Proc. §§ 2550, 2556), and, therefore, is not appealable. (Id. § 2570.)
It is true that, in respect to the summary statement of the account of the executor, it is provisional; and that when made final it may be that all the questions now raised, as well as those which may be added, can be considered on an appeal taken from it. But the principles upon which the executor is debited in the account are determined, and the only thing left and optional for him to do is to take proceedings to modify the balance, if he. can, in the manner provided. Until and unless that is done the decree represents the account as settled. In that sense the determination was final and the decree of the Surrogate’s Court, for the purposes of this review, is so treated.
The leading question is whether or not the executor was chargeable with the proceeds or profits of the livery business conducted by him after the death of the testator. He clearly was so chargeable if he carried on the business as’ executor of the will; and such will be deemed his relation to the business for the purposes of accounting for the profits, unless it may be treated otherwise by reason of the bequest of that livery property to him. The principle is fundamental that a trustee' cannot be permitted to realize [304]*304profit for-himself from the appropriation or use of trust property or funds. The deceased could not make testamentary disposition of any of. his property to the prejudice of his creditors, nor could the executor, by the bequest to him of the livery property, deny to the creditors the right to the full benefit of it as the assets of the estate of the decedent.
The legacy bequeathed to him was a specific legacy. As a general rule, such a legacy vests on the'death of the testator, and the legatee, from that time, is entitled to the income and profits of the legacy. (3 Pom. Eq. Juris. § 1130 ; Kirby v. Potter, 4 Ves. 748; Barrington v. Tristam, 6 id. 345.) The title, however, of the legatee is inchoate until assent to the legacy is given by the executor, and when such assent is given it is separated from the assets of the. estate and ceases to be part of them and the inchoate title of the legatee is perfected. (2 Wms. Exrs. [5th Am. ed.] m. p. 1242; 2 Woerner Am. Law of Adm. § 453 ; Hudson v. Reeve, 1 Barb. 89.)
But although the legacy vests as of the time of the death of the testator, .the assent of the executor is necessary to enable the legatee to obtain it at law. (Doe v. Guy, 3 East, 120; Andrews v. Hunneman, 6 Pick. 126 ; Hudson v. Reeve, supra ; Howard v. Heinerschit, 16 Hun, 177; Onondaga T. & D. Co. v. Price, 87 N. Y. 542.) Such assent, however, cannot properly be given to .the prejudice of the creditors, and if given and there is a deficiency in assets to pay the debts of the decedent, the legatee, cannot only be required to refund, but the executor, by whose assent the legatee has taken the legacy, may be required to account for it with interest on its value. (Spode v. Smith, 3 Russ. 511.)
Although an executor cannot, by sale, vest title in himself as an individual, yet, when the person who is the executor is himself the legatee of a specific legacy, his assent as executor may be available in his' behalf and may be implied when occasion permits. (2 Woerner Law Adm. § 453 ; Chester v. Green, 5 Humph. 26.) But as a specific legacy remaining as part of the estate or not separated from it by assent, will abate pro rata or wholly on deficiency of assets, it is contemplated that the executor will not give his assent that the legatee of a specific legacy take it unless and until he has ascertained that there is no occasion to retain it for the payment of debts. (Armstrong’s Appeal, 63 Penn. St. 312.)
[305]
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Bradley, J.:
This proceeding was instituted by the petition of the appellant for his accounting as executor, etc., of Edward G. Van Houten, deceased, who died in April, 1894. He had for some years been ^engaged in the livery business at Nyack, N. Y., which business was ■conducted for him by -his- brother Erastus. By his will the testator devised certain premises to his wife Anna L., and his daughter .Della Van Houten, and gave to his brother Erastus “all horses, carriages and robes, harness and all personal property used in and in connection with the said livery stable and the business therein conducted and the good will of the said business,” and directed that the remainder of his estate be used first in payment of his debts, and .that, if it should be exhausted, the legacy given to his brother Erastus ■“next be liable for such debts’remaining unpaid.” He nominated his brother Erastus, his wife Anna L. and his daughter Della Van Houten to be executors of his will, and gave - them power to .sell his real estate. Letters testamentary were, issued to them in April, 1894. The personal estate of the testator was appraised, at $6,621.03, of which the sum of $3,202.94 constituted the appraised value of the horses, carriages and stock in the livery stable. After the death of the .testator the appellant took possession of the livery property ¡and carried eh the business with it. The gross receipts of the business from April 19, 1894, to April 1, 1896, amounted to $23,039. By the decree in question the appellant was charged with .the .amount of the inventory....................... $6,621 03 With sum increase and' rents, collected...........223 00 And with gross receipts of the livery stable business
conducted since the death of the testator........... 23,039 00
$29,883 03
And credited with amount of
Purdy mortgage........................ $236 53
With funeral expenses...................’ ISO 75
.With taxes, interest, insurance and repairs. 2,465 63
- 2,882 91
Balance......................................... $27,000 12
The decree is ¡so far interlocutory as to declare to, the effect that "it “ appearing that- the said executor may possibly have incurred [303]*303expenses in the administration of the estate for which he may be entitled to a credit, which expenses are not set forth at large or claimed in his account, and that a portion of certain debts of the estate have been paid by him, a credit for which at the sum claimed by him in his account has been hereby disallowed,” it is ordered and decreed that he “ have leave to account at the foot of this decree for all such expenses incurred by him, and that he receive a credit upon this accounting for so much thereof as may be legally allowable, and for so much of the credits hereby disallowed as shall appear to be the amount of the dividend which the said creditors would have received had they been paid proportionately with the other creditors herein,” and that unless he shall, within twenty days, proceed “ to institute such proceedings upon the foot of this decree as are herein provided for, his said accounts shall be finally judicially settled and allowed as stated in the summary statement included herein.”
It is with some force urged on the part of the respondents that this determination of the surrogate is neither a decree or an order within the statutory meaning of those terms (Code Civ. Proc. §§ 2550, 2556), and, therefore, is not appealable. (Id. § 2570.)
It is true that, in respect to the summary statement of the account of the executor, it is provisional; and that when made final it may be that all the questions now raised, as well as those which may be added, can be considered on an appeal taken from it. But the principles upon which the executor is debited in the account are determined, and the only thing left and optional for him to do is to take proceedings to modify the balance, if he. can, in the manner provided. Until and unless that is done the decree represents the account as settled. In that sense the determination was final and the decree of the Surrogate’s Court, for the purposes of this review, is so treated.
The leading question is whether or not the executor was chargeable with the proceeds or profits of the livery business conducted by him after the death of the testator. He clearly was so chargeable if he carried on the business as’ executor of the will; and such will be deemed his relation to the business for the purposes of accounting for the profits, unless it may be treated otherwise by reason of the bequest of that livery property to him. The principle is fundamental that a trustee' cannot be permitted to realize [304]*304profit for-himself from the appropriation or use of trust property or funds. The deceased could not make testamentary disposition of any of. his property to the prejudice of his creditors, nor could the executor, by the bequest to him of the livery property, deny to the creditors the right to the full benefit of it as the assets of the estate of the decedent.
The legacy bequeathed to him was a specific legacy. As a general rule, such a legacy vests on the'death of the testator, and the legatee, from that time, is entitled to the income and profits of the legacy. (3 Pom. Eq. Juris. § 1130 ; Kirby v. Potter, 4 Ves. 748; Barrington v. Tristam, 6 id. 345.) The title, however, of the legatee is inchoate until assent to the legacy is given by the executor, and when such assent is given it is separated from the assets of the. estate and ceases to be part of them and the inchoate title of the legatee is perfected. (2 Wms. Exrs. [5th Am. ed.] m. p. 1242; 2 Woerner Am. Law of Adm. § 453 ; Hudson v. Reeve, 1 Barb. 89.)
But although the legacy vests as of the time of the death of the testator, .the assent of the executor is necessary to enable the legatee to obtain it at law. (Doe v. Guy, 3 East, 120; Andrews v. Hunneman, 6 Pick. 126 ; Hudson v. Reeve, supra ; Howard v. Heinerschit, 16 Hun, 177; Onondaga T. & D. Co. v. Price, 87 N. Y. 542.) Such assent, however, cannot properly be given to .the prejudice of the creditors, and if given and there is a deficiency in assets to pay the debts of the decedent, the legatee, cannot only be required to refund, but the executor, by whose assent the legatee has taken the legacy, may be required to account for it with interest on its value. (Spode v. Smith, 3 Russ. 511.)
Although an executor cannot, by sale, vest title in himself as an individual, yet, when the person who is the executor is himself the legatee of a specific legacy, his assent as executor may be available in his' behalf and may be implied when occasion permits. (2 Woerner Law Adm. § 453 ; Chester v. Green, 5 Humph. 26.) But as a specific legacy remaining as part of the estate or not separated from it by assent, will abate pro rata or wholly on deficiency of assets, it is contemplated that the executor will not give his assent that the legatee of a specific legacy take it unless and until he has ascertained that there is no occasion to retain it for the payment of debts. (Armstrong’s Appeal, 63 Penn. St. 312.)
[305]*305In the present case the situation was not such as to justify the surrender by the representative to the individual of the things-which constituted the specific legacy, which may be deemed abated,, and, therefore, is subject to the jurisdiction of the Surrogate’s. Court. The legatee, nevertheless, having taken possession of such property, proceeded to carry on the livery business with it. This-the executor as such could not lawfully do, although if he did, without any other right or relation to such property, use it in conducting the business, the results, with a view to the profits only,, would be recognized. It seems to me that as bearing upon the question here of the accounting, the bequest to the person who is the executor is entitled to some significance and consideration,' consistently, however, only with the rights of the creditors of the testator. Their rights were to have the property he left, the proceeds or value of it, devoted to the payment of the debts. The appraisement duly made is prima facie the value of the property included in the inventory thereupon made, but is not conclusive in that respect. (Forbes v. Halsey, 26 N. Y. 53, 60.) It is open to inquiry and to proof that there were assets not included in the inventory and appraisal, and that those which were included, or some of them, had a greater value or had been sold for more than their appraised value. The good will of the livery business was an asset which went to the executor and is not included in the inventory. (Matter of Randell, 2 Connoly, 29.) The business connected with the livery property bequeathed to the brother does not seem to have been treated by him as that of the executor as such, nor was the property treated by him as that of the estate. He, as occasion and convenience suggested, traded some of it for other property. He kept no account of the business as executor. And he says that he deemed himself as the owner debited with the appraised value of the livery property. This tends to characterize ■ the relation which he sought to give to that business. While as against the creditors the specific legacy may be deemed wholly abated, he, in view of the. bequest to him, may not be deemed to have conducted the business in behalf of the estate, and, therefore, did not become chargeable with the profits of that business. He must, however, account for the property or the value of it, [306]*306.including the good will of the business and interest upon the ■amount, and for the rent of the- premises occupied for such business. (Matter of Mullon, 74 Hun, 358 ; 145 N. Y. 98.)
Assuming, as by reason of the abatement of the legacy we do, that the livery stable property as to the creditors of the testator .may be treated as part of the assets of the estate of the decedent, the omission to refile the Cunningham and Depew chattel mortgages, as provided by the statute, rendered the lien of them ineffectual as against such creditors. (Karst v. Gane, 136 N. Y. 316; Stephens v. Perrine, 143 id. 476.)
In the view taken of the case, it is unnecessary to consider any other question, as none other presented on this review may necessarily arise upon another accounting.
If' these views are correct, the decree, should be reversed, a new accounting he had in the Surrogate’s Court, and for such purpose the proceeding be remitted to that court to proceed therein.
All concurred.
Surrogate’s - decree reversed, ..with costs of this appeal to the -appellant, payable out of the estate, and a new accounting had before the Surrogate’s Court, and the proceeding remitted to the court to proceed therein.