kin, or otherwise," and authorized the said Caleb Randall "to collect and receive the same and every part and parcel thereof.” These papers were put in evidence upon the trial by the counsel for Jane Randall, and were received over the objection of the administrator. A similar deed, dated October 7, 1890, from Sarah Randall to Caleb Randall, reciting a consideration of $1,600, and a similar assignment from Sarah to Caleb, of the same date, reciting a consideration of $4,400, were received in evidence in behalf of the administrator, who proved actual payment in cash of said sums, amounting to $6,000. Jane and Sarah both claimed that these papers were procured from them by Caleb through the false and fraudulent representation that all the property left by Harvey, both real and personal, was worth but $38,500, and much evidence was given by them tending to support this claim. Caleb gave a different version of the transaction, claiming that it was a fair purchase by him of the interests of his said sisters, made upon their urgent solicitation, and based upon what was regarded at the time as a fair valuation. The surrogate found that Caleb Randall, "at the time of the death of the decedent, knew the character, quality and value of the property, both real and personal, of which" he "died seized," and that "neither Jane nor Sarah had any knowledge of the value" thereof, "except such as was acquired by them from the statements of the administrator, made to them together and separately; that in such statements, made to both Sarah and Jane, the said Caleb, for the purpose of obtaining an undue, unjust and wrongful advantage over them, represented to them, and each of them, that the value of both the real and personal estate was much less than it really was, and that it was of much less value than he well knew it to be, and that they, and each of them, relied on such representations." By his decree, the surrogate, without formally setting aside the assignments, ignored them, and required Caleb Randall, as administrator, to account upon the same basis as if they had not been made, but he credited the amount of the consideration recited in the respective assignments as of the date when the money was paid.

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Upon the settlement of the case, he was requested by the administrator to find "that Sarah Randall, a sister of decedent, who had been permitted to intervene as an interested party herein, has no interest in this matter, she having sold and assigned all her interest in the personal estate of said decedent prior to this accounting." The surrogate refused to so find and the administrator excepted. A similar request was made as to Jane Randall, which the surrogate also refused to find, and an exception was taken.

Upon appeal to the General Term the decree of the surrogate was affirmed upon the ground that the administrator had no right to purchase the interests of Jane and Sarah Randall for his own benefit; that the attempt so to purchase inured to the benefit of the remaining heirs and next of kin of the decedent, and, as they did not appeal, that the administrator had not been injured by the decree of the surrogate and had no cause for an appeal therefrom.

Pending the appeal to the General Term Caleb Randall died and James II. Randall was appointed his administrator and duly substituted as a party. From the judgment of affirmance he appeals to this court.

James M. Whitman and L. Fraser for appellant. Surrogates and Surrogates' Courts derive none of their jurisdiction or power from the common law, but must find the warrant for all their doings in the Constitution and statutes. (Stilarell v. Carpenter, 59 N. Y. 414; Beran v. Cooper, 72 N. Y. 317; Riggs v. Cragg, 89 N. Y. 479; In re Underhill, 117 N. Y. 471; Code Civ. Pro. § 2472, subds. 3, 4, 2743.) The only tribunal which could avoid, vacate or set aside the assignments is one possessing general equity powers. (Beran v. Cooper, 72 N. Y. 317; Harris v. Ely, 25 N. Y. 138; Kenny v. Jackson, 1 Hagg. 105; McNulty v. Hurd, 72 N. Y. 518; In re Wagner, 119 N. Y. 28; In re Pruyn, 141 N. Y. 544; Sanders v. Soutter, 126 N. Y. 193; In re Monroe, 142 N. Y. 484.) The law does not forbid, though it does not look upon with favor, a purchase by a trustee, directly of his cestui

que trust. (Lewin on Trusts [8th ed.], 487; Perry on Trusts, § 195; Coles v. Trecothick, 9 Ves. 244; Gibson v. Jeyes, 6 Ves. 277; Randall v. Errington, 10 Ves. 426; Whichcote v. Laurence, 3 Ves. 750; Sanderson v. Walker, 13 Ves. 601; Ayliffe v. Murray, 2 Atk. 59; Brown v. Crowell, 116 Mass. 461; Graves v. Waterman, 63 N. Y. 657.)

S. W. Russell for respondents. The sisters Jane and Sarah Randall, not having been included in the citation, and having appeared, were properly permitted by the surrogate to intervene and become parties to the accounting. (Code Civ. Pro. §§ 2514, 2728, 2729, 2730, 2731; Clock v. Chadeagne, 10 Hun, 97; In re Martines, 11 Abb. [N. C.] 50; In re Read, 41 Hun, 95.) The administrator admitted his liability to account by his petition to the surrogate, and he cannot, therefore, set up as a bar that he had settled with the next of kin. (Kellett v. Rathbun, 4 Paige, 108.) The administrator was not discharged from accounting by a written receipt in full of balance as one of the next of kin, nor by a conveyance by one of the next of kin to him. (Harris v. Ely, 25 N. Y. 138; In re Read, 41 Hun, 95.) In this accounting the surrogate had jurisdiction to settle the account of the administrator, determine the amount to be distributed, the persons to whom it should be distributed, and to direct the distribution thereof to the persons entitled to the same, according to their respective rights. (Code Civ. Pro. § 2472, subds. 3, 4, 6, § 2743; Harris v. Ely, 25 N. Y. 138; Tappan v. M. E. Church, 3 Dem. 187; In re Orser, 4 Civ. Pro. Rep. 129; In re York, 6 Civ. Pro. Rep. 245; In re Read, 41 Hun, 95; In re Underhill, 117 N. Y. 471.) The surrogate has jurisdiction to hear and determine any and all claims in which the executor or administrator is interested. The fact that others are jointly interested with him, or that he has acquired an additional interest by assignment after he became such, does not affect the authority of the surrogate to adjudicate in regard to it. (Shakespeare v. Markham, 72 N. Y. 400; 2 R. S. 88, $33.)

N. Y. Rep.]

Opinion of the Court, per VANN, J.

VANN, J. The question presented by this appeal involves the power of a Surrogate's Court, upon the final settlement of the accounts of an administrator, to set aside or treat as invalid a written assignment, valid upon its face and made for a good consideration, whereby one of the next of kin assigned to him, as an individual, a distributive share in the estate.

This question, which was not passed upon by the learned General Term, has led to some difference of opinion in the courts. Those who defend the jurisdiction of the Surrogate's Court rely upon section 2472 of the Code of Civil Procedure, which relates to the general jurisdiction of that court and confers upon it the power, among other things, "to direct and control the conduct, and settle the accounts, of executors, administrators, and testamentary trustees; * To enforce the payment of debts and legacies; the distribution of the estates of decedents; and the payment or delivery, by executors, administrators, and testamentary trustees, of money or other property in their possession, belonging to the estate.

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To administer justice, in all matters relating to the affairs of decedents, according to the provisions of the statutes relating thereto. This jurisdiction must be exercised in the cases, and in the manner, prescribed by statute." Reliance, to some extent, is had upon section 2481, relating to the incidental powers of the surrogate, which authorizes him "in court or out of court, as the case requires," to issue process, subpoenas and the like; to adjourn, punish for contempt, sign, certify and exemplify records, and, in general, to regulate the practice in his court. Reference is made in particular to the last subdivision of the section, which is in these words: "11. With respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court, having by the common law, jurisdiction of such matters, except as otherwise prescribed by statute; and to exercise such incidental powers, as are necessary to carry into effect the powers expressly confer

Opinion of the Court, per VANN, J.

[Vol. 152.

red." Section 2743, as it stood before the amendment of 1895, is also cited, and is as follows: "Where an account is judicially settled, as prescribed in this article, and any part of the estate remains, and is ready to be distributed to the creditors, legatees, next of kin, husband, or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. If any person, who is a necessary party for that purpose, has not been cited or has not appeared, a supplemental citation must be issued, as prescribed in section 2727 of this act. Where the validity of a debt, claim or distributive share is not disputed or has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same. With respect to the matters enumerated in this section, the decree is conclusive upon each party to the special proceeding, who was duly cited or appeared; and upon every person deriving title from such a party."

The amendment of 1895 is not now important, as the decree in question was made in 1893.

The main reliance of the respondents is upon the following cases: Harris v. Ely (25 N. Y. 138); Shakespeare v. Markham (72 N. Y. 400); Matter of Underhill (117 N. Y. 471; Matter of Read (41 Hun, 95).

In Harris v. Ely it was held that an executor, who had never accounted in any way, could be required to account upon the application of the sole devisee and legatee, notwithstanding she had given him, without the actual payment of any thing, a receipt in full to a certain date, reciting a nominal con sideration, and had transferred all her estate to him upon á passive trust under an ante-nuptial settlement. The decision proceeded upon the theory that as there had been no accounting, either voluntary or judicial, the executor still held the assets as executor and not as trustee. The court said: "I: was important to the legatee to ascertain the extent of the property which she had in the estate of the testator, so that it might be known what was in the hands of the trustee under