Div. 587; Sexton v. Sexton, 64 App. Div. 385; Matter of Goundry, 57 App. Div. 232; Matter of Munson, 70 Misc. Rep. 461.) The question at issue was whether any transfer had ever been made. Such a controversy has always been held to be within the jurisdiction of the Surrogate's Court. (Matter of Schnabel, 202 N. Y. 134.) The Surrogate's Court Paul R. Towne for respondents. had no jurisdiction to pass upon the questions raised by the appellant involving title to the articles of jewelry which Mrs. Watson claimed. (Matter of Cunard, 7 N. Y. Supp. 553; Matter of McGuire, 106 App. Div. 131; Matter of Slingerland, 36 Hun, 575; Matter of Richardson, 31 Misc. Rep. 666; Matter of McCarty, 47 N. Y. Supp. 1127.) MILLER, J. The question involved in this appeal is whether the surrogate had jurisdiction to determine the issue raised by the objections to the executors' account interposed by the appellant to the effect that the executors had failed to account for a ruby ring and a pearl necklace which it was alleged belonged to the testatrix at the time of her death. One of the accounting executors, a daughter of the testatrix, claimed that the ring and necklace had been given to her by her mother. The surrogate referred the matter to a referee, who reported in favor of the appellant. So much of the report as related to that subject was overruled by the surrogate on two grounds, viz.: (1) That the appellant had not sustained the burden of showing that the property omitted from the schedule of account belonged to the estate of the testatrix, and (2) that in any event the surrogate did not have jurisdiction to determine the matter. The Appellate Division passed on the question of jurisdiction only and affirmed the decree "without prejudice to the appellant's right to the maintenance of an action to recover for the estate of the testatrix the articles involved in this appeal." The Appellate Division decided the case on the authority of Matter of Schnabel (202 N. Y. 134), in which it was decided that section 2731 of the Code of Civil Procedure had not conferred general equitable jurisdiction on the Surrogate's Court, e. g., to set aside a transfer as fraudulent and void as to creditors. The appellant in this case merely invoked the jurisdiction of the surrogate to compel an executor to account for the property of his testator, and the exercise of that jurisdiction depended solely on the determination of the question of fact whether the property belonged to the testatrix at the time of her death. If the mere assertion of a claim of ownership by an executor ousts the surrogate of jurisdiction to compel an account of the property of the testator, it will be a simple matter to accomplish that result in every case in which an executor may prefer some other tribunal. Section 2731 of the Code of Civil Procedure, prior to the amendment of 1914, provided in part as follows: "On the judicial settlement of the account of an executor or administrator, he may prove any debt owing to him by the decedent. Where a contest arises. between the accounting party and any of the other parties respecting property alleged to belong to the estate, but to which the accounting party lays claim either individually or as the representative of the estate, or respecting a debt, alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party, the contest must, except where the claim is made in a representative capacity, in which case it may, be tried and determined in the same manner as any other issue arising in the surrogate's court." It would seem that the present case falls within both the letter and the spirit of the provision just quoted. The learned surrogate, however, thought otherwise for the reason that there are two accounting parties in this case and the statute uses the singular number, "accounting party," and for the further reason that the property in question did not belong to the estate of the testatrix. The first reason takes a too narrow view of the statute and the second is based on a decision of the very question which it was thought the surrogate did not have jurisdiction to decide. Section 2472, subd. 4, of the Code of Civil Procedure (ed. 1913) provides that the Surrogate's Court has jurisdiction inter alia to enforce "the payment or delivery, by executors, administrators, and testamentary trustees, of money or other property in their possession, belonging to the estate." The fact that there are two accounting executors, only one of whom lays claim to the property in dispute, should not deprive the Surrogate's Court of jurisdiction, which it would possess in case that one were the only executor. We are not concerned now with the decree to be entered in such a case, but only with the jurisdiction of the surrogate to determine the conflicting claims of the estate and of the executor individually to the property in dispute, and to protect the rights of the parties by a proper decree according to the circumstances of the particular case. Where a contest arises respecting property "alleged to belong to the estate, but to which the accounting party lays claim, * individually * * * * the contest must * * be tried and determined in the same manner as any other issue arising in the surrogate's court." It is the allegation that the property to which the accounting party lays claim belongs to the estate, not the actual fact of ownership, which gives the court jurisdiction. If the surrogate had decided the fact of ownership against the appellant, the unanimous affirmance of the finding by the Appellate Division would have deprived this court of jurisdiction to review it; but the surrogate declined jurisdiction to decide the contest on the assumption that the merits of it were with the accounting party and the decision of the Appellate Division was solely on the question of jurisdiction. That the Surrogate's Court has jurisdiction to try and determine the issues arising upon such a contest as was involved in this case has been held by different surrogates (Matter of Ammarell, 38 Misc. Rep. 399; Matter of Finn, 44 Misc. Rep. 622; Matter of Archer, 51 Misc. Rep. 260; Matter of Munson, 70 Misc. Rep. 461), by the Appellate Divisions in the third and second departments (Matter of Goundry, 57 App. Div. 232; Matter of Niles, 142 App. Div. 198; Sexton v. Sexton, 64 App. Div. 385; Matter of Cavanagh, 121 App. Div. 200; Matter of Perry, 129 App. Div. 587), and by this court in affirming without opinion Sexton v. Sexton, supra (174 N. Y. 510), and it was assumed, though the point does not appear to have been raised, in Matter of Van Alstyne (207 N. Y. 298). Plainly the Surrogate's Court has jurisdiction to try and determine issues arising upon any contest respecting a debt alleged to be due by the accounting party to the decedent or by the decedent to the accounting party. With equal reason it should have jurisdiction to determine conflicting claims of ownership to personal property between an accounting party and his estate. The trial and determination of such issues falls far short of the exercise of general equitable jurisdiction, and we think that the statute was intended to confer jurisdiction in both classes of cases. On the question of the burden of proof it is sufficient to say that the surrogate did not attach sufficient importance to the · undisputed fact that the property in dispute was owned and possessed by the testatrix up to within a short time before her death. (See Matter of Perry, supra.) The order of the Appellate Division and decree of the surrogate should be reversed and the proceeding remitted to the Surrogate's Court, with costs to abide the final award of costs. WERNER, HISCOCK, CHASE, COLLIN, HOGAN and CARDOZO, JJ., concur. Order and decree reversed, etc. JULIA M. C. LAWRENCE, Appellant, v. CHARLES C. LITTLEFIELD, as administrator with the Will Annexed of the Estate of MARY G. PINKNEY, Deceased, et al., Defendants, and LOUIS H. MORRIS et al., Respondents. (Court of Appeals, July 13, 1915.) WILL-TRUST OF UNPRODUCTIVE REAL ESTATE WITH IMPERATIVE POWER OF SALE-WHEN PROCEEDS SHOULD BE APPORTIONED BETWEEN INCOME PAYABLE FROM TIME OF TESTATOR'S DEATH TO LIFE BENEFICIARY AND PRINCIPAL BELONGING TO REMAINDERMEN-WHEN INCOME COMMENCES WHERE A CONVERSION OF PROPERTY IS REQUIRED TO FORM TRUST FUND-RATE OF INTEREST IN COMPUTING INCOME-WHETHER SUPREME COURT WILL ENTERTAIN JURISDICTION OF AN ACTION WHERE RELIEF MIGHT BE OBTAINED IN SURROGATE'S COURT DISCRETIONARY. 1. Under a will creating a trust of unproductive real estate, income payable to a life beneficiary and remainder to others, with an imperative power of sale and equitable conversion of the real estate into personalty at the death of the testator, with actual sale and conversion accruing only after a considerable delay, the testator will be held to have intended that the proceeds thus and when realized should be apportioned between income payable from the time of her death to the life beneficiary and principal belonging to the remaindermen. Authorities bearing upon the principle involved collated, discussed and followed. 2. A clause of the will whereby after giving a power of sale to the executors, it was provided "that they apply such portions of the proceeds (of sales) as in their judgment they may deem proper to the payment of any taxes and assessments that may be liens upon said real estate or any part thereof and to pay over the surplus that may not be required in their judgment for the above purpose to the said (plaintiff and the three other beneficiaries named with her) in the proportions mentioned in the eighth and ninth clauses of this my will, the whole of such part or share as may then fall to the said (plaintiff) to be held in trust by my executors as hereinbefore provided," construed, and held, that a contention that thereunder there was a power to sell only for payment of taxes which would give plaintiff an interest only in any surplus that might happen to be produced in that manner, cannot be sustained where there has been a prior adjudication that there was an imperative power of sale which worked an equitable conversion of all the residuary property at the date of testatrix's decease; that the provision in question was intended to give the power to sell land, pending the general conversion, for the purpose of raising money with which to pay |