The Chancellor.
I think the surrogate erred in this case, in referring the account to an auditor foi examination. For it does not appear that there was any proceeding before him which called for a final settlement of the account of the executor, or for a settlement or adjustment of the account even as between the parties to the proceedings before him. The rendering of an account, by an executor or administrator, and the settlement of that account after it has been rendered, are not one and the same proceeding, though the latter is frequently a mere continuation of the former proceeding. The 52d section of the article of the revised statutes relative to the duties of executors and administrators, in rendering an account and in making distribution to the -next of •kin, (2 R. iS. 92,) authorizes the surrogate, after the expiration of eighteen months, to make an order requiring the executor or admihistrator to render an account of his proceedings. And such order may be made upon the application of a person having a claim upon the estate of the decedent, either as creditor, legatee, or next of kin, or«by any person in behalf of a minor having such a claim; or it may be made by the surrogate, by virtue of his office, and without any application on the part of those who are interested in the estate. The 54th section of the same title directs the manner of rendering such account, and authorizes the examination of the executor or administrator upon oath, touching the payments stated in his account as having been made by him, and as to the property and effects of the deceased which have come to his hands, and the disposition thereof, That, however completes the rendering of the accounts. And [477]*477it terminates the proceeding, unless the executor or administrator has asked for a final settlement of the account; or some person interested as a creditor, or legatee, or who is entitled to a distributive share of the estate, has applied for the payment of his debt, or legacy, or distributive share.
Where the executor or administrator applies for a final settlement, the surrogate, after the account has been rendered, is authorized to adjust and settle the account. And for this purpose any person interested in the estate may surcharge or falsify the account which has been rendered; and witnesses may then be examined in relation to the matters in dispute between the parties. In such cases also, the surrogate, in the exercise of a sound discretion in reference to the nature and extent of the questions in dispute between the parties, may refer the accounts, which have been presented to him, to an auditor or auditors, to examine and report thereon. (2 R. S. 93, § 60, 64, 70.)
There is another class of cases in which the surrogate is authorized to proceed and settle the account, after it has been rendered m the manner prescribed in the 54th section; although the executor or administrator does not ask to subject himself, or the estate which he represents, to the expense of a final settlement, by any proceeding on his part The principal object of the proceeding against the executor or administrator, to compel him to render an account, is to enable those who are interested in the estate to ascertain the situation of the fund; and to enable them to obtain the payment of their debts, legacies, or distributive shares, out of such fund, by a-decree of the surrogate or otherwise. The surrogate has power to decree the payment of debts, legacies, and distributive shares, out of the funds of the estate in the hands of the executor or administrator. (2 R. S. 116, § 18.) Where an application, therefore, is made to the surrogate, by a creditor, or by a legatee who is entitled to a legacy of a specified amount, if the executor or administrator denies that the fund in his hands is sufficient to pay that and all other claims which are entitled to a preference, or to an equality in payment, the surrogate will be authorized to adjust or settle the account of the executor or administrator; for the purpose of as[478]*478certaining whether the claimant is entitled to a decree for the payment of his debt, or legacy, or any part thereof. The petitioner, therefore, if the executor, has not already rendered his account to the surrogate, may in his petition ask for such account, and also for the payment of his debt or legacy. And after the account has been rendered, the surrogate may, if its correctness is disputed, proceed to settle the same, so far as concerns the rights of those parties; and may make his decree as to the payment accordingly. A residuary legatee, or a person who is entitled to a distributive share, may also proceed in thé same manner, to have the account of the executor or administrator liquidated and settled, so as to obtain his residuary or distributive' share of the estate of the decedent. But in either case, if the applicant, in his petition to the surrogate for an account, has not asked for the payment of his debt, or legacy, or distributive share, but merely that the executor may render an account, as in the present case, he must make a new or further application' to the surrogate ; stating the nature and extent of his own claim upon the fund, and his objections, if any, to the account rendered by the executor or administrator, and asking that the account may be settled and adjusted, and that he may be paid the amount of his claim, or so much thereof as he may be entitled to, out of the fund in the hands of such executor or administrator.
The petition presented to the surrogate in this case, asked no relief whatever, either general or specific, except that the executor might be ordered to render an account according to law. And that prayer having been fully complied with, the jurisdiction of the surrogate under the same was exhausted. No settlement of the account, therefore, could properly be made, without presenting a new petition for the settlement and adjustment of the account, and the payment of the distributive share' of the wife of the petitioner. It may" also be proper to observe that aS the distributive share belonged to the petitioner’s wife, arid riot to him, the petition should have been in their joint tiames; so that the accounting would have been binding upon hef as witf as her husband; and so that the proceedings could have been continued in her name if her husband had happened to die' be[479]*479fore the final decree. That, however, was a mere technical objection, which was not made before the surrogate.
I think the surrogate also erred in refusing to permit the executor to verify his accounts in the usual form by oath. The statute makes the oath of the executor evidence in his own favor, as to certain small items of disbursement, and to a limited amount. Beyond those, the oath of the executor to the correctness of the account would not have been evidence in his own favor. But for the protection of the rights of parties interested in the estate as creditors or legatees, the surrogate should in all cases require the account to be rendered on oath.
The estates of deceased persons should not be subjected to the useless expense of producing evidence to prove items in the account of the executor or administrator, when the correctness of those items is not in fact doubted by the adverse parties.
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The Chancellor.
I think the surrogate erred in this case, in referring the account to an auditor foi examination. For it does not appear that there was any proceeding before him which called for a final settlement of the account of the executor, or for a settlement or adjustment of the account even as between the parties to the proceedings before him. The rendering of an account, by an executor or administrator, and the settlement of that account after it has been rendered, are not one and the same proceeding, though the latter is frequently a mere continuation of the former proceeding. The 52d section of the article of the revised statutes relative to the duties of executors and administrators, in rendering an account and in making distribution to the -next of •kin, (2 R. iS. 92,) authorizes the surrogate, after the expiration of eighteen months, to make an order requiring the executor or admihistrator to render an account of his proceedings. And such order may be made upon the application of a person having a claim upon the estate of the decedent, either as creditor, legatee, or next of kin, or«by any person in behalf of a minor having such a claim; or it may be made by the surrogate, by virtue of his office, and without any application on the part of those who are interested in the estate. The 54th section of the same title directs the manner of rendering such account, and authorizes the examination of the executor or administrator upon oath, touching the payments stated in his account as having been made by him, and as to the property and effects of the deceased which have come to his hands, and the disposition thereof, That, however completes the rendering of the accounts. And [477]*477it terminates the proceeding, unless the executor or administrator has asked for a final settlement of the account; or some person interested as a creditor, or legatee, or who is entitled to a distributive share of the estate, has applied for the payment of his debt, or legacy, or distributive share.
Where the executor or administrator applies for a final settlement, the surrogate, after the account has been rendered, is authorized to adjust and settle the account. And for this purpose any person interested in the estate may surcharge or falsify the account which has been rendered; and witnesses may then be examined in relation to the matters in dispute between the parties. In such cases also, the surrogate, in the exercise of a sound discretion in reference to the nature and extent of the questions in dispute between the parties, may refer the accounts, which have been presented to him, to an auditor or auditors, to examine and report thereon. (2 R. S. 93, § 60, 64, 70.)
There is another class of cases in which the surrogate is authorized to proceed and settle the account, after it has been rendered m the manner prescribed in the 54th section; although the executor or administrator does not ask to subject himself, or the estate which he represents, to the expense of a final settlement, by any proceeding on his part The principal object of the proceeding against the executor or administrator, to compel him to render an account, is to enable those who are interested in the estate to ascertain the situation of the fund; and to enable them to obtain the payment of their debts, legacies, or distributive shares, out of such fund, by a-decree of the surrogate or otherwise. The surrogate has power to decree the payment of debts, legacies, and distributive shares, out of the funds of the estate in the hands of the executor or administrator. (2 R. S. 116, § 18.) Where an application, therefore, is made to the surrogate, by a creditor, or by a legatee who is entitled to a legacy of a specified amount, if the executor or administrator denies that the fund in his hands is sufficient to pay that and all other claims which are entitled to a preference, or to an equality in payment, the surrogate will be authorized to adjust or settle the account of the executor or administrator; for the purpose of as[478]*478certaining whether the claimant is entitled to a decree for the payment of his debt, or legacy, or any part thereof. The petitioner, therefore, if the executor, has not already rendered his account to the surrogate, may in his petition ask for such account, and also for the payment of his debt or legacy. And after the account has been rendered, the surrogate may, if its correctness is disputed, proceed to settle the same, so far as concerns the rights of those parties; and may make his decree as to the payment accordingly. A residuary legatee, or a person who is entitled to a distributive share, may also proceed in thé same manner, to have the account of the executor or administrator liquidated and settled, so as to obtain his residuary or distributive' share of the estate of the decedent. But in either case, if the applicant, in his petition to the surrogate for an account, has not asked for the payment of his debt, or legacy, or distributive share, but merely that the executor may render an account, as in the present case, he must make a new or further application' to the surrogate ; stating the nature and extent of his own claim upon the fund, and his objections, if any, to the account rendered by the executor or administrator, and asking that the account may be settled and adjusted, and that he may be paid the amount of his claim, or so much thereof as he may be entitled to, out of the fund in the hands of such executor or administrator.
The petition presented to the surrogate in this case, asked no relief whatever, either general or specific, except that the executor might be ordered to render an account according to law. And that prayer having been fully complied with, the jurisdiction of the surrogate under the same was exhausted. No settlement of the account, therefore, could properly be made, without presenting a new petition for the settlement and adjustment of the account, and the payment of the distributive share' of the wife of the petitioner. It may" also be proper to observe that aS the distributive share belonged to the petitioner’s wife, arid riot to him, the petition should have been in their joint tiames; so that the accounting would have been binding upon hef as witf as her husband; and so that the proceedings could have been continued in her name if her husband had happened to die' be[479]*479fore the final decree. That, however, was a mere technical objection, which was not made before the surrogate.
I think the surrogate also erred in refusing to permit the executor to verify his accounts in the usual form by oath. The statute makes the oath of the executor evidence in his own favor, as to certain small items of disbursement, and to a limited amount. Beyond those, the oath of the executor to the correctness of the account would not have been evidence in his own favor. But for the protection of the rights of parties interested in the estate as creditors or legatees, the surrogate should in all cases require the account to be rendered on oath.
The estates of deceased persons should not be subjected to the useless expense of producing evidence to prove items in the account of the executor or administrator, when the correctness of those items is not in fact doubted by the adverse parties. The surrogate, upon the settlement and adjustment of the account, therefore, should call upon the party contesting the account to state what items thereof are admitted, and what are intended to be contested, before proceeding to hear the testimony in relation thereto; but with liberty to add to the objections, if upon the examination of the executor or administrator upon oath, or otherwise, it should be discovered that other charges or credits are erroneous. And where the account is referred to an auditor, he should be required to proceed in the same manner. The costs of the accounting being in the discretion of the surrogate, if the party contesting the account subjects the accounting party to useless expense, by unfounded objections, he may be properly charged with costs personally.
The order of the surrogate, referring the accounts to the auditor, not being founded upon any proper application before him for the settlement of the account, or upon any proceedings which required a settlement and adjustment of the accounts as between these parties, that order was erroneous and must be reversed. The statute authorizes the examination of the executor on oath upon the mere rendering of an account. But in that case, the examination must be before the surrogate himself; as he is only authorized to appoint an auditor to examine and report upon the [480]*480accounts where there is to be a settlement thereof. The reversal of the order of reference is to be without prejudice to the right of the respondent and his wife, to apply to the surrogate for the payment of her proportion of the estate of the testator, if the same has become due and payable, according to the terms of the will; and to settle the account of the executor so far as may be necessary to ascertain the amount which is to be paid.
The proceedings before the surrogate upon rendering the account being at an end, by this reversal of the order of reference to the auditor, the application for security for costs necessarily falls with it. It may be proper for me to say, however, that I have examined the question, presented by that part of the appeal, and have arrived at the conclusion that an application to the surrogate by a creditor, legatee, or distributee of the testator or intestate, to compel the executor or administrator to pay a debt, legacy, or distributive share out of the fund in his hands, is not such a suit as will entitle- the party proceeded against to security for costs where the applicant is a non-resident. Although such a proceeding may properly be denominated a suit in the surrogate’s court, so as to bring it within the language of the first section of the title of the revised statutes relative to security for the payment of costs, (2 R. S. 620,) the other provisions of that title are such as to satisfy me that the first section, as well as the others, was only intended to apply to suits in courts of record.
Neither party is to have costs as against the other upon the appeal.