in Jenk's Short History of English Law (pp. 226-230). But the technical limitations on such administration suits are only to be found in the adjudications.

In a suit in chancery for the administration of assets the usual practice was to refer the matter to the master in chancery, to take an account of the debts, funeral expenses and pecuniary legacies, to compute interest, to advertise for creditors and legatees to appear and prove their claims within a limited time, and to take an account of the personal estate which might have come into the hands of the executors or of any other person, by his order or use, and that the personal estate be applied in payment of debts, funeral expenses and legacies in a course of administration. (Hoffman, Ch. Pr. 180, 181.) A party dissatisfied with the report of the master in chancery might file exceptions. (Id. 184.) In Thompson v. Brown (4 Johns. Ch. 619) discussed by Hoffman at pages 187, 188, two propositions were laid down one that where a creditor files a bill, either for himself or for all the creditors, the decree for an account is for the benefit of all the creditors, and in the nature of a judgment, and that all may come in and prove their demands, and that from the date of the decree the court will enjoin creditors from proceeding at law and will take jurisdiction of the sole distribution of the assets. In such distribution all judgments prior to the decree were preferred according to their priority in time, and all other debts ratably, without regard to legal priorities, and irrespective of whether the assets administered were legal or equitable.

In administration suits the executor or administrator was a necessary party if the suit affected the personalty. (Story Eq. Pl. § 171.) Third persons who had possession of the personalty, or were liable to account therefor, under particular circumstances, might also be joined. For example, if there was alleged to exist collusion between such third persons and the legal representatives, or if the latter were insolvent or refused to collect the outstanding claim, or also, if the third person was a surviving

partner of the decedent. (Id. § 178.) Heirs at law or devisees were necessary parties, if it was sought to charge the realty or to sell the realty. Where no heir could be found it was usual to make the attorney-general a party. (Id. § 180 and note.) If the object of the bill was to carry into effect the trusts created by the will, without establishing the will, a decree might be made in the absence of an heir. (Id. § 181.) Both executors and administrators must be parties. (Id. § 218.)

Administration suits were controlled by the rules then gov erning parties to bills and cross-bills. Cross-bills could not introduce new parties. (2 Daniell Ch. Pr. § 1548, note.) Here was a very distinct limitation on the jurisdiction of a court of equity, for if new parties could not be introduced the issues jurisdictional in administration suits were necessarily to be confined to the matters alleged in the original bill for administraton. But the primary limitation on the equity jurisdiction in administration suits was that where a debt of a creditor was disputed, it must be first established at law.

Since the Revised Statutes the legislature has proceeded to assimilate the jurisdiction of the surrogate to that of the court of chancery in suits for the judicial settlement of the accounts. of executors and administrators. Chapter 576 of the Laws of 1910 was a great step forward (repealed by the Surrogates' Law of 1914). It provided as follows: "The surrogates' court has also jurisdiction upon a judicial accounting or a proceeding for the payment of a legacy to ascertain the title to any legacy or distributive share, to set off a debt against the same, and for that purpose ascertain whether the debt exists, to affect the accounting party with a constructive trust, and to exercise all other power, legal or equitable, necessary to the complete disposition of the matter." (Code Civ. Proc., § 2472a, Laws of 1913.) The idea that this enactment much enlarged the surrogates' jurisdiction has been generally entertained. (Matter of Carey, 77 Misc. Rep. 602, 605.) That in some respects the surrogates' equitable

jurisdiction was larger than the jurisdiction of the chancellor in administration suits is apparent. That the surrogate had power before 1910 to ascertain who were legatees and distributees is not doubtful, but his jurisdiction to raise constructive trusts or to try disputed titles to legacies or distributive shares by reason of equitable considerations was due solely to the act of 1910. (Matter of Randall, 152 N. Y. 508; Matter of Monroe, 142 id. 484; Matter of Keleman, 126 id. 73; Fulton v. Whitney, 66 id. 557; Meeks v. Meeks, 122 App. Div. 461; Matter of Losee, 119 id. 107, 111.)

In England to this day the remodeled probate courts possess no such large powers or jurisdiction as those now vested in the surrogates of New York state. In England proceedings for such accounts and distribution of estates lie only in the Chancery Division of the Hight Court of Justice, and if a creditor institutes such proceedings his debt, if disputed, must in some way be first established in an action by or against the executors. (Matter of Powers, 30 Ch. Div. 291. See 2 Williams Exrs. [10th ed.] 1632, 1650.) In Pennsylvania the issues arising on devises are not yet justiciable in the Orphans' Courts on an audit of an account, but all such matters go to the Common Pleas Courts of that state for final decision and disposition. No jury trial is known in the probate courts of England or Pennsylvania. That the proceedings in England or Pennsylvania are less efficient or more dilatory and expensive than under the system employed in this state has never been asserted by any one familiar with the various jurisdictions.

Notwithstanding the legislation of 1910 in this state, it is extremely doubtful that the powers of a court of equity even thereafter appertained to a Surrogate's Court (Matter of Randall, 152 N. Y. 508; Matter of Thompson, 184 id. 36, 44; Matter of Schnabel, 202 id. 129, 137; Matter of Hasbrouck, 153 App. Div. 394, 398; Stilwell v. Carpenter, 59 N. Y. 414; Meeks v. Meeks, 122 App. Div. 461, 463); or, as it is sometimes

expressed by other courts, the legislature had not yet made "chancellors out of surrogates." (Matter of Bolton, 159 N. Y. 135; Matter of Henderson, 157 id. 429.) From this class of adjudications cited we may infer that even since the legislation of 1914 wherever the grant of equitable powers to a surrogate may be unconstitutional, or is now doubtful and not express, equitable jurisdiction will be denied to the surrogates. Nevertheless, the grant of jurisdiction to the surrogates over accountings is always held to carry with it such powers, legal and equitable, as are incidental and material to an efficient exercise of the jurisdiction. (Riggs v. Cragg, 89 N. Y. 489; Hyland v. Baxter, 98 id. 616; Matter of Underhill, 117 id. 471, 472; Matter of Wagner, 119 id. 28, 31; Matter of United States Trust Co., 175 id. 304, 309; Sexton v. Sexton, 64 App. Div. 385, 389; affd., 174 N. Y. 510; Matter of Schnabel, 202 id. 134.) To have held otherwise would have been to defeat by judicial construction the obvious intent of the legislature.

That the legislature prior to the new law of 1914 had not yet conferred upon surrogates jurisdiction to decide some controversies which might arise in proceedings before the surrogates to settle the accounts of executors or administrators I thought apparent. For this reason I lately declined jurisdiction in an important matter. (Matter of Watson, 86 Misc. Rep. 595; affd., 165 App. Div. 252.) But the Court of Appeals took a larger view in Matter of Watson of the new legislation than it had ever before taken, and it affirmed the jurisdiction of the surrogates over what had seemed to me a thitherto doubtful class of controversies. (215 N. Y. 209.) In England persons who possess themselves of property of the deceased cannot be made parties to proceedings against the executor. (2 William Exrs. [10th Eng. ed.] 1650.)

It is well known that before 1895 (Laws of 1895, chap. 595) the surrogates had no power to determine any controverted claims against the estate of a deceased person (Tucker v. Tucker,

4 Keyes, 136; McNulty v. Hurd, 72 N. Y. 520; Glacius v. Fogel, 88 id. 434; Riggs v. Crag, 89 id. 479; Fiester v. Shepard, 92 id. 251; Lambert v. Craft, 98 id. 342; Matter of Ryder, 129 id. 640; Matter of Callahan, 152 id. 320, 324; Matter of Miles, 170 id. 75; Matter of Gibson, 176 id. 520, 528; Matter of Martin, 211 id. 328, 330; Dayton Surrogates [3d ed.] 489), although in accounting proceedings by a creditor equity had ordinarily complete jurisdiction to determine the title of the alleged creditor. (Misner v. Strong, 181 N. Y. 163.) Nor had the surrogates until 1895 power to determine the validity of claims of the estate against third persons, even though such third persons were parties to the accounting. (Matter of Underhill, 117 N. Y. 471; Meeks v. Meeks, 122 App. Div. 461, 462.) The surrogates' jurisdiction to determine in accounting proceedings claims of third persons to property claimed by the representatives of deceased persons was prior to 1910 also denied. (Matter of Thompson, 184 N. Y. 36; Matter of Gall, 182 id. 270, 278. Cf. Matter of McLaughlin, 158 App. Div. 952.)

The surrogates' equitable powers over the proceeds of lands sold under a testamentary power and brought into court, for example, were very restricted prior to the year 1914 (Matter of McComb, 117 N. Y. 378, 382), unless there was a conversion effect ed by the will. (Matter of Caldwell, 188 N. Y. 115.) A surrogate had, until recently, no adequate power to pass upon the validity of a devise. It was, however, then held that where a testator undertook to create a trust in which the real and the personal property were inseparably blended, the surrogate had power to construe such clause and declare the trust invalid and void in so far as it affects the personal property of testator. (Matter of Trotter, 182 N. Y. 465.) It will be remembered that until 1850 the surrogates had no jurisdiction whatever overthe accounts of testamentary trustees. (Laws of 1850, chap.. 272; Matter of Runk, 200 N. Y. 447; Matter of Hawley, 104 id. 250.)