In the Matter of the Application of Charles J. Warren, Respondent, for Leave to Issue Execution on a Judgment Recovered by Him in the City Court of New York, in the Action of Charles J. Warren against Titus C. Hammond, as Administrator with the Will Annexed, etc., of Thomas V. J. Christophers, Deceased; Titus C. Hammond, as Administrator with the Will Annexed, etc., of Thomas V. J. Christophers, Deceased, Appellant

In the Matter of the Application of Charles J. Warren, Respondent, for Leave to Issue Execution on a Judgment Recovered by Him in the City Court of New York, in the Action of Charles J. Warren against Titus C. Hammond, as Administrator with the Will Annexed, etc., of Thomas V. J. Christophers, Deceased. Titus C. Hammond, as Administrator with the Will Annexed, etc., of Thomas V. J. Christophers, Deceased, Appellant. Leave to issue an execution against an administrator — what must he shown on an application therefor — the fact that an administrator treated money as belonging to the estate is not conclusive — when an accounting should he ordered — no preference can be given, » On an application under sections 1825 and 1826 of the Code of Civil Procedure, for leave to issue execution upon a judgment rendered against an executor or administrator in his representative capacity, the petitioner is required to show either that the executor or administrator has funds of the estate on hand applicable to the payment of the judgment which he refuses to so apply, or that funds of the estate have been misapplied which should have been devoted to the payment of the judgment. ' Where, on such an application, a question arises as to whether moneys, received by an administrator with the will annexed from the United States upon a claim known as one of the “French Spoliation Claims,” constitutes an asset of the estate or a mere gratuity given by the United States to the testator’s next of kin, the fact that the administrator with the will annexed treated a portion of such money as an asset of the estate is not conclusive upon the question as to the character of such money. "When, in such a case, the question as to the character of such money should not be determined upon affidavits, but upon an accounting had pursuant to subdivision 1 of section 2725 of the Code of Civil Procedure, considered. 2To preference can be given to a judgment creditor under section 1829 of the Code of Civil Procedure. Appeal by Titus 0. Hammond, as administrator with the will annexed, etc., of Thomas Y. J. Christophers, deceased, from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 24th day of April, 1905, granting leave to Charles J. Warren to issue execution upon a judgment recovered by him against the above-named administrator. On the 29th of March, 1905, one of the surrogates of the county of Hew York, on the application of Charles J. Warren, issued an order requiring Titus C. Hammond, as administrator with the will annexed of Thomas Y. J. Christophers, deceased, to show cause why an application made by the said Warren for leave to issue execution upon a judgment should not be granted. The order was made upon an affidavit of the attorney for Warren, setting forth, among other things, that a judgment was recovered by said Warren on the 28th of February, 1905, against Titus C. Hammond, as administrator with the will annexed of Thomas Y. J. Christophers; that the judgment was against that defendant in his representative capacity; that the action in which the judgment was recovered was brought upon promissory notes of the said Christophers; that such judgment remains unpaid, although there are sufficient assets of the decedent in the possession of the defendant, or under his control, applicable to the judgment; that the assets of the estate in the possession of the defendant on the 16th day of April, 1903, consisted of the sum of $17,263, which was paid by the government of the United States to the defendant as administrator of Christophers’ estate in full settlement of the claim of such estate “ against the United States for the loss of the ship Ganges, otherwise known as the ‘ French. Spoliation Claims ; ’ ” that immediately upon the payment of the money to the defendant by the United States government, Warren filed a claim against the estate of the deceased, which was rejected by the administrator, and thereupon the action above referred to was begun against the administrator on the rejected claim, and that action resulted in favor of the plaintiff therein, as above set forth ; that letters of administration with the will annexed were issued to Hammond by the Surrogate’s Court of the county of New York in 1901; that Hammond is a non-resident of the State of New York. On the return of the order to show cause, Hammond, the administrator with the will annexed, appeared and presented an answer, or answering affidavit, in which he sets forth his appointment as administrator with the will annexed, and admits the recovery of the judgment against him in favor of Charles J. Warren; and, after making certain denials, further sets forth that he received notice of the claim of Warren, but that prior thereto he (administrator), with all other parties interested in the estate of Thomas Y. J. Christophers, with the exception of Warren, entered into a certain agreement which is annexed to his answer or affidavit. By that instrument it appears that the parties thereto, namely, the residuary legatees named in the last will and testament of Christophers and the widow and only heir at law and next of kin of said Christophers, and Hammond, the administrator with the will annexed, agreed that a certain French Spoliation Claim arising out of the seizure of the ship Ganges, amounting to $17,263, had been awarded by the United States Court of Claims, and a judgment therefor rendered against the United States in a proceeding had before said Court of Claims to Thomas Y. J. Christophers, and the Congress of the United States has duly appropriated the sum of $17,263 for the payment of said claim, payable to the said Titus C. Hammond as said administrator; that Christophers died a resident of the county of New York in 1890, leaving his next of kin and a last will and testament duly admitted to probate in 1890, and that in the will Christophers made no provision for his widow and son; that it is necessary before the claim can be paid to Hammond, as administrator, by the Treasurer of the United States, that competent proof be adduced before the Court of Claims that there is next of kin surviving Thomas Y. J. Christophers, deceased, and that Hammond represents the next of kin; that Charles H. Blair was retained by Christophers to prosecute the said claim in the Court of Claims upon the agreement and stipulation that Blair was to receive as compensation thirty-five per cent of any sum which might be awarded or secured to Thomas V. J. Christophers or his estate, and that Blair prosecuted the said claim to a successful conclusion; that in the .course of the proceedings in the Court of Claims, in order to determine the rights of conflicting claimants to the sum to be awarded by reason of the seizure of the ship Ganges, a stipulation was made by the parties before the Court of Claims that one J. B. Van Wagenen should receive a certain proportion of any award which might be made by the said Court of Claims, and that after making such stipulation further opposition on the part of the interests represented by Van Wagenen was withdrawn; that in order to facilitate the payment of the award to the administrator and to distribute, the same among the parties thereto entitled, “ it is hereby mutually agreed that the following conditions and agreements should [shall] be binding upon all the parties hereto, and shall be in consideration for the waiving of any and all further claims of any kind and nature upon said estate, or upon said fund not herein described, expressed or stipulated.” It was further agreed, among other things, that the amount of the claim should be collected by a certain time named; that out of the award of $17,263, $5,179 should be paid to Charles TI. Blair; that there should be paid to the legatees under the will of Christophers $200; to Benjamin Tates, attorney, for his services for the administrator, $750; to Titus C. Hammond, for fees and disbursements, $500 ; to the widow, Mary L. Christophers, and William W. Christophers, the sum of $2,500, and then it was expressly understood and agreed that should any other claim, which is at present unknown, be presented against the estate of Christophers within six months of the distribution of the net amount of the claim awarded by the Court of Claims, after deducting the expenses of collecting the same, and such claim or claims should be proved and allowed by the surrogate of the county of New York, the parties to the agreement, other than the Van Wagenen interest, who have received in satisfaction of their claim or interest a sum in excess of $500, will contribute rata towards the payment of said claim, not, however, to exceed the amount received by them, and will to that extent indemnify the administrator by their undertaking in writing. The administrator then set up in Ms answer or affidavit that thereafter and under the terms of the agreement he received the sum of $7,855, and that that is the only < sum of money or asset of any nature or kind whatever that has come into his hands as administrator; that after receiving such sum of $7,855, he paid $7,655 in accordance with the terms of the agreement, such money being paid to the persons entitled to receive the same under the stipulation, exclusive of the legatees under the will, other than the residuary legatees, and the balance of $200 remaining in his hands, tinder the terms of the stipulation, was paid by him to the legatees; that he has paid to the legatees mentioned in the will, other than the residuary legatees, the sum of $125, leaving in his hands the sum of $75. It is then set forth as follows: “ The said Titus 0. Hammond further alleges that there is not money or other property .of the estate of said Thomas V. J. Christophers, deceased, applicable to the payment or satisfaction of the said Charles J. Warren’s claim, and that there has not been since said claim was presented, and that the only estate now in his hands as administrator, is the sum of Seventy-five ($75) dollars, which is due to legatees as herein set forth.” Alter hearing the application the surrogate granted the motion for leave to issue execution, and from the order entered thereupon the administrator with the will annexed appeals. Leonidas Dennis, for the appellant. Isaac D. Miller, for the respondent. [MAJORITY — Patterson, J.:] Patterson, J.: It will be seen from the foregoing statement that, although Hammond as administrator entered into an agreement by which a distribution of the moneys he received has been made to various parties, including legatees under the will of Thomas V. J. Christophers, yet it is insisted by him that such moneys are not assets of the estate of his decedent. It is alleged in the affidavit of the attorney for Warren that the $17,263 was received by Hammond in settlement of a claim against the Hnited States for the loss of the ship Ganges, being one of those claims known as the French Spoliation Claims. The administrator insists that under the acts of the Congress of the Hnited States and under the decisions of the Supreme ■ Court of the Hnited States construing those statutes the fund which lie received is not an asset of the estate of Christophers, but, on the contrary, is a gift, gratuity or bounty made or given by the United ■States, and that the creditors of the decedent have no right or interest therein, it belonging exclusively to, and being for the sole benefit of, the next of kin of the decedent, and, hence, it is argued that the moneys are not available to the creditors of Thomas Y. J. Christophers. It appears also that Hammond has distributed the moneys or some of them under the will of Christophers, and has treated them, to some extent, as if they were assets of his estate; but that has been done apparently with the consent of the next of kin and by an agreement to which they were parties. In the order appealed from it is recited as follows : “ And it appearing to my satisfaction that the assets of the said estate are sufficient to pay the said judgment in full, it is * * * Ordered, that the said motion be and the same is hereby granted and the said1 Charles J. Warren is hereby permitted to issue execution upon the said judgment in due form of law in his favor and against the said administrator to collect the sum of Two thousand four hundred fifty-one and 08-100 ($2,451.08) dollars with interest thereon from the 27th day of February, 1905.” This adjudication is conclusive evidence (except on appeal) that there are sufficient assets in the administrator’s hands to satisfy the sum for which the order permits the execution to issue. (Code Civ. Proc. § 2552.) We are of opinion that there was not enough in the proof before the surrogate to authorize the order made. The proceeding is taken under sections 1825 and 1826 of the Code of Civil Procedure. By the first section it is enacted that an execution shall not be issued upon a judgment for a sum of money, against an executor or administrator, in his representative capacity, until an order permitting it to be issued has been made by the surrogate from whose court the letters were issued and that such an order must specify the sum to be collected, and that the execution must be indorsed with a direction to collect that sum. So far the proceeding is regular. By section 1826 it is provided, however, that where it appears that the assets, after payment of all sums chargeable against them for expenses, and for claims entitled to priority as against the plaintiff, are not or will not be sufficient to pay all the debts, legacies or other claims of the class to which the plain till’s claim belongs, the Sum. directed to be collected by the execution, shall not exceed the plaintiff’s just proportion of the assets. No preference can be given to a judgment creditor under this section. (Schmitz v. Langhaar, 24 Hun, 168; affd., 88 N. Y. 503.) "We think there was not enough before the surrogate on this application to justify the finding that there were in the hands of the administrator assets sufficient to pay in full the Warren claim. It is a very serious question whether the amount paid to the administrator with the will annexed is an asset of Christophers’ estate at all, but we are not called upon to determine that now, in the absence of the record of the judgment in the Court of Claims. That the administrator with the will annexed may have dealt with some of the proceeds of that judgment as an asset is not conclusive upon the question; he could not deprive the next of kin of their interest in that fund by any act of his, and if he has distributed the money under the terms of the will of Christophers with the assent of the next of kin, if the money belonged to them that does not convert the fund into an asset of the estate. To entitle the petitioner to have execution issue upon his judgment, he is required to show either that the representative has funds of the estate on hand applicable to the payment of the judgment which he refuses to apply, or that funds of the estate have been misapplied which should have been devoted to the payment of the judgment. (Matter of Gall, 40 App. Div. 114.) It is not satisfactorily shown here that the funds arising out of the payment to the administrator of this French Spoliation Claim is an asset of Christophers’ estate. It is alleged to be so in the affidavit of the judgment creditor, but the answering affidavit plainly sets forth that there is not money or other property of the estate of Christophers applicable to the payment or satisfaction of Warren’s claim. We think this is an eminently proper case for' an accounting under subdivision 1 of section 2725 of the Code of Civil Procedure which allows proceedings against an executor or administrator, where an application has been made by a judgment creditor, as prescribed in section 1826 of said Code, in which the surrogate may, in his discretion, make an order requiring an executor or administrator to render an intermediate account. 'On such an accounting, everything in connection with the award made by the Court of Claims may be inquired into and the nature of that award, whether constituting an asset of Christophers’ estate or not, may be determined. It is true that an order to account is within the discretion of the surrogate, but we think that he should determine, after a full disclosure of all the facts, whether the Ganges award is an asset of Christophers’ estate, and that the order should be reversed without prejudice to the right of Warren as a judgment creditor to take such proceedings in connection with his application for leave to issue execution, or otherwise, as he may be advised. The order must be reversed, with costs of the appeal to abide the event. O’Brien, P. J., McLaughlin and Laughlin, JJ., concurred: Ingraham, J., concurred in result. Order reversed, with costs of appeal to abide event.