Smith, J.:
At the threshold of this discussion it is necessary to determine the extent of the surrogate’s jurisdiction. Assuming to account as executor of Mary Emily Hull under her will this executor has been compelled to account for the moneys which she received as administratrix of the estate of Harry Maxwell Bushby. The objection first raised upon this appeal is that any claim this contestant had against the estate of Mary Emily Hull by reason of moneys received by her as such administratrix is a claim that should be adjusted by action brought in another court, the determination of which is beyond the jurisdiction of the surrogate. Ordinarily the surrogate has not the power to determine a claim made against an estate except upon written stipulation and consent of all parties. Under section 2606 of the Code of Civil Procedure it is provided that where an administrator dies a person interested in the estate may require the executor of the administrator to account for the acts of the deceased as administrator. James Hull, therefore, was liable, under this section, to account not only for his own acts as executor of the estate of Mary Emily Hull under the will, but for her acts as administratrix of the estate of Harry Maxwell Bushby, and to the extent of the interest of this contestant in the estate of Harry Maxwell Bushby this executor was bound to account to the contestant, provided moneys came into his hands from the estate of Mary Emily Hull sufficient to satisfy said claim. In accounting under the will of Mary Emily Hull he cannot ignore her liability for the moneys received as administratrix of her first husband. All the parties were before the court for the determination of the extent of that liability, and the surrogate clearly had jurisdiction under section 2606 of the Oode of Civil Procedure, to determine the questions raised thereupon. (See Matter of Hicks, 170 N. Y. 195 ; Fowler v. Hebbard, 40 App. Div. 108.)
As the executor was thus required to account for the acts of his decedent as administratrix of Harry Maxwell Bushby, we are at a loss to understand why the referee declined to allow him to show payments made by the deceased to the contestant. It is claimed here that the questions were not in proper form; that a book of the decedent showing these payments was attempted to be introduced in evidence without proper proof thereof. The answer to this claim [264]*264would seem to be that the referee excluded the evidence specifically upon the ground that- the inquiry was not “ within the scope of or contemplated by the order of the Surrogate in this matter.” This was one of the objections urged by the contestant. To hold that the referee was invested with power to determine the liability of Mary Emily Hull to the contestant by reason of moneys received from the Bushby estate, and to hold that he was without power to consider what payments had been made upon that liability, is clearly paradoxical. The referee has reported,, and the Surrogate’s Court has confirmed the report, fixing the liability of the estate of Mary Emily Hull to the contestant for moneys received as administratrix of Harry Maxwell Bushby, and this has been done while refusing to allow the representative of Mary Emily Hull to show payments upon that liability. It is not an answer to this erroneous ruling that the contestant was not allowed interest upon this fund by reason of the fact she received her support from her mother. The payments may have been largely in excess of such interest, and the estate may have been entitled to a credit not only for the interest which would otherwise have been due, but also for the payments made. These matters can only be determined upon a complete accounting. For this error of the referee the executor is clearly entitled to a new hearing upon this account.
This conclusion renders it unnecessary to discuss the other questions raised by the appeal. Inasmuch, however, as they must again arise, it is perhaps proper that we express an opinion as to some of them. It is difficult to sustain the granting or the allowance of fifty dollars to the executor upon the transfer of the real estate to the contestant. This would seem to be unauthorized under Phœnix v. Livingston (101 N. Y. 451); Matter of McGlynn (41 Misc. Rep. 156); Roosevelt v. Van Alen (31 App. Div. 1, 3, 5). The credit to the estate of £300 paid for illegal debts is not warranted in law. While it is hardly conceivable that a natural child should object to a credit to her mother for the payment of her father’s debts of honor, this contestant has the legal right so to object, and if she chooses to assume that position the court must sustain her objection.
The counsel have argued at length upon the construction of the will of Mary Emily Hull and the effect of the release to herself by the contestant of her right to the income and proceeds of the residue [265]*265under said will. The assignment by the annuitant was made after the repeal of the statute authorizing the destruction of the trust by a release of one entitled to the rents and profits. (See Laws of 1903, chaps. 87,88.) It is doubtful if that release can be effective to accomplish the object sought while the part of the rents and profits to which the contestant was entitled was indefinite and undetermined. Without, however, deciding this question, we are of opinion that under the will of Mary Emily Hull the entire residue of the property passed to the contestant. The executor claims that she is entitled only to the income therefrom, and that at her death the property must descend as the property of an intestate. The provision for the accumulation of income is confessedly void. That the testatrix intended that her daughter should have the corpus as well as the income of the property seems, under all the facts surrounding the making of the will, to be unquestionable. There is a legal presumption against intestacy, and it is not probable that the testatrix intended the substance of her property should go to strangers as it would if left as intestate property upon the death of the contestant. The contestant was her only child. There is nothing to indicate that the relations between them were not those of affection which are ordinarily found. There is an evident intent, by the provision for the accumulation of income and by the attempted trust, to put a restraint upon the daughter’s control and subject it in part to the control of her husband, this executor. Hot for a moment, however, can a doubt be entertained that it was the intention of the testatrix that both principal and income of the property should ultimately go to the benefit of her daughter. This construction of the will is sustained, I think, by authority. In Thomas v. Troy City National Bank (19 Misc. Rep. 474) Mr. Justice Chester lays down the rule thus: “ If the will should be held to contain simply a gift of the use and income of the estate instead of the fee or the absolute title, there being no disposition in it of the remainder, it should be held under the authorities that there was a devise and bequest of the fee by implication to the parties to whom the income is given. (Masterson v. Townshend, 123 N. Y. 458; Philipps v. Chamberlaine, 4 Ves. 51; Earl v. Grim, 1 Johns. Ch. 497.) ” In Paterson v. Ellis (11 Wend. 298) Senator Edmonds says: “ It is also a rule of law that a devise of the interest or of the rents and profits is a devise of the thing itself, out of [266]*266which that interest or those rents ■ and profits may issue.
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Smith, J.:
At the threshold of this discussion it is necessary to determine the extent of the surrogate’s jurisdiction. Assuming to account as executor of Mary Emily Hull under her will this executor has been compelled to account for the moneys which she received as administratrix of the estate of Harry Maxwell Bushby. The objection first raised upon this appeal is that any claim this contestant had against the estate of Mary Emily Hull by reason of moneys received by her as such administratrix is a claim that should be adjusted by action brought in another court, the determination of which is beyond the jurisdiction of the surrogate. Ordinarily the surrogate has not the power to determine a claim made against an estate except upon written stipulation and consent of all parties. Under section 2606 of the Code of Civil Procedure it is provided that where an administrator dies a person interested in the estate may require the executor of the administrator to account for the acts of the deceased as administrator. James Hull, therefore, was liable, under this section, to account not only for his own acts as executor of the estate of Mary Emily Hull under the will, but for her acts as administratrix of the estate of Harry Maxwell Bushby, and to the extent of the interest of this contestant in the estate of Harry Maxwell Bushby this executor was bound to account to the contestant, provided moneys came into his hands from the estate of Mary Emily Hull sufficient to satisfy said claim. In accounting under the will of Mary Emily Hull he cannot ignore her liability for the moneys received as administratrix of her first husband. All the parties were before the court for the determination of the extent of that liability, and the surrogate clearly had jurisdiction under section 2606 of the Oode of Civil Procedure, to determine the questions raised thereupon. (See Matter of Hicks, 170 N. Y. 195 ; Fowler v. Hebbard, 40 App. Div. 108.)
As the executor was thus required to account for the acts of his decedent as administratrix of Harry Maxwell Bushby, we are at a loss to understand why the referee declined to allow him to show payments made by the deceased to the contestant. It is claimed here that the questions were not in proper form; that a book of the decedent showing these payments was attempted to be introduced in evidence without proper proof thereof. The answer to this claim [264]*264would seem to be that the referee excluded the evidence specifically upon the ground that- the inquiry was not “ within the scope of or contemplated by the order of the Surrogate in this matter.” This was one of the objections urged by the contestant. To hold that the referee was invested with power to determine the liability of Mary Emily Hull to the contestant by reason of moneys received from the Bushby estate, and to hold that he was without power to consider what payments had been made upon that liability, is clearly paradoxical. The referee has reported,, and the Surrogate’s Court has confirmed the report, fixing the liability of the estate of Mary Emily Hull to the contestant for moneys received as administratrix of Harry Maxwell Bushby, and this has been done while refusing to allow the representative of Mary Emily Hull to show payments upon that liability. It is not an answer to this erroneous ruling that the contestant was not allowed interest upon this fund by reason of the fact she received her support from her mother. The payments may have been largely in excess of such interest, and the estate may have been entitled to a credit not only for the interest which would otherwise have been due, but also for the payments made. These matters can only be determined upon a complete accounting. For this error of the referee the executor is clearly entitled to a new hearing upon this account.
This conclusion renders it unnecessary to discuss the other questions raised by the appeal. Inasmuch, however, as they must again arise, it is perhaps proper that we express an opinion as to some of them. It is difficult to sustain the granting or the allowance of fifty dollars to the executor upon the transfer of the real estate to the contestant. This would seem to be unauthorized under Phœnix v. Livingston (101 N. Y. 451); Matter of McGlynn (41 Misc. Rep. 156); Roosevelt v. Van Alen (31 App. Div. 1, 3, 5). The credit to the estate of £300 paid for illegal debts is not warranted in law. While it is hardly conceivable that a natural child should object to a credit to her mother for the payment of her father’s debts of honor, this contestant has the legal right so to object, and if she chooses to assume that position the court must sustain her objection.
The counsel have argued at length upon the construction of the will of Mary Emily Hull and the effect of the release to herself by the contestant of her right to the income and proceeds of the residue [265]*265under said will. The assignment by the annuitant was made after the repeal of the statute authorizing the destruction of the trust by a release of one entitled to the rents and profits. (See Laws of 1903, chaps. 87,88.) It is doubtful if that release can be effective to accomplish the object sought while the part of the rents and profits to which the contestant was entitled was indefinite and undetermined. Without, however, deciding this question, we are of opinion that under the will of Mary Emily Hull the entire residue of the property passed to the contestant. The executor claims that she is entitled only to the income therefrom, and that at her death the property must descend as the property of an intestate. The provision for the accumulation of income is confessedly void. That the testatrix intended that her daughter should have the corpus as well as the income of the property seems, under all the facts surrounding the making of the will, to be unquestionable. There is a legal presumption against intestacy, and it is not probable that the testatrix intended the substance of her property should go to strangers as it would if left as intestate property upon the death of the contestant. The contestant was her only child. There is nothing to indicate that the relations between them were not those of affection which are ordinarily found. There is an evident intent, by the provision for the accumulation of income and by the attempted trust, to put a restraint upon the daughter’s control and subject it in part to the control of her husband, this executor. Hot for a moment, however, can a doubt be entertained that it was the intention of the testatrix that both principal and income of the property should ultimately go to the benefit of her daughter. This construction of the will is sustained, I think, by authority. In Thomas v. Troy City National Bank (19 Misc. Rep. 474) Mr. Justice Chester lays down the rule thus: “ If the will should be held to contain simply a gift of the use and income of the estate instead of the fee or the absolute title, there being no disposition in it of the remainder, it should be held under the authorities that there was a devise and bequest of the fee by implication to the parties to whom the income is given. (Masterson v. Townshend, 123 N. Y. 458; Philipps v. Chamberlaine, 4 Ves. 51; Earl v. Grim, 1 Johns. Ch. 497.) ” In Paterson v. Ellis (11 Wend. 298) Senator Edmonds says: “ It is also a rule of law that a devise of the interest or of the rents and profits is a devise of the thing itself, out of [266]*266which that interest or those rents ■ and profits may issue. (Citing authorities.) This rule, however, is to be understood with some limitations. Where the intention of the testator to give only the use is. clear, manifest and undisputed, the rule must yield to the stronger force of the intention, but where it is doubtful whether the use only or the absolute ownership was intended to be given, the rule has been allowed to have a controlling effect. It is by no means clear that in the case before us the use only was. devised. If there is any doubt, it is whether the ownership was not intended to be given, and the rule to which I have adverted comes with great propriety to our aid in solving the question.” In Williams on Executors (Yol. 2 [7th Am. ed.], p. 478) the rule is stated : “ Where the ‘ interest ’ ’ or ‘ produce ’ of a fund is bequeathed to a legatee, or in trust for him, without cmy limitation as to continuance, the principal will be regarded as bequeathed also.” This provision for the payment of the income of this fund is not limited - in the will to the life, of the contestant, but is “ without any limitation as to continuance.” This fact, in connection with the failure to provide for a remainder, in view of the strong inference that the whole fund was intended for the benefit of the contestant, would seem to preclude the construction which should declare this property intestate property upon the death, of the contestant.
It is further contended that under the will of Tobias Frere, upon the death of Eliza Rebecca Bushby, in case she shall be married at the time of her decease, the trustees are to hold the property in trust for the persons who,, at the time of her decease, would, under the statutes for the distribution of the estate of persons dying intestate, be entitled to the same. It is, therefore, claimed by the executor that inasmuch as Eliza Rebecca Bushby died leaving her husband, one Bauldrey, her surviving, the trust still continues under the will of Tobias Frere. We do not so read the will. In case Eliza Rebecca Bushby shall leave children who shall attain the age of twenty-one years, or dying under that age, shall leave issue, the direction of the will seems to be that the property shall go to such child or its issue if the child be dead. The provision as to the death of Eliza Rebecca Bushby while married seems to be upon condition that there shall be no child or grandchild living. The practical construction put upon this will has given the property to Mary [267]*267Emily Hull as administratrix of the estate of Harry Maxwell Bushby. Eor the moneys thus received her executor now must account.
The surrogate’s decree should be reversed and a new trial granted, with costs of appeal to executor from the fund.
All concurred ; Parker, P. J., and Houghton, J., in result.
Decree reversed and new trial granted, with costs of appeal to executor payable out of the fund.