Under the former law, for the purposes of distribution, the surrogate had an incidental power to construe a will in so far as it was necessary to determine to whom legacies should be paid (Matter of Verplanck, 91 N. Y. 439; Garlock v. Vandevort, 128 id. 374), but he had no jurisdiction to compel a legatee to restore an overpayment on a legacy (Matter of Lang, 144 N. Y. 275), and no general jurisdiction to construe wills. (Kirk v. McCann, 117 App. Div. 56, 59.) But whenever the jurisdiction of the surrogate over accountings existed, in a case where complete relief might be had in the Surrogates' Court, the other courts of the state vested with concurrent jurisdiction would decline to exercise their own jurisdiction. (Wager v. Wager, 89 N. Y. 161; Underwood v. Curtis, 127 id. 523; Matter of Farrell, 125 App. Div. 702.) Thus step by step the jurisdiction of the surrogates to pass upon controverted claims against estates has been enlarged by statute. (Matter of Thompson, 184 N. Y. 44.) But even now the mode is very strictly limited. (Matter of Martin, 211 N. Y. 328, 330; Matter of Holzworth, 166 App. Div. 150, 154; Matter of Higgins, 91 Misc. Rep. 387.) I have now outlined the growth of the equitable jurisdiction of the Surrogates' Courts in proceedings for the settlement of accounts of representatives of estates prior to the year 1914, when the New Surrogates' Law" went into effect. That law contains more liberal provisions than any other act ever affecting the jurisdiction of the surrogates. By that law (Code Civ. Proc. of 1915, § 2510) the surrogates are given jurisdiction: "To administer justice in all matters relating to the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any proceeding in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires." This is a very broad provision and was intended to be such. But as the new Surrogates' Law * * * of 1914 was enacted under the old Constitution it is doubted, and I think with much reason, whether the legislature had the power to enlarge the equitable jurisdiction of the surrogates of this state. (Const. 1894, § 15, art. VI; Matter of Bunting, 98 App. Div. 122, opinion of Hatch, J., concurred in by Justices Van Brunt, Patterson and O'Brien.) The appeal, it is to be observed in Matter of Bunting, was dismissed in the Court of Appeals without opinion (182 N. Y. 552). Consequently this decision still confronts the profession of the law whenever the new equitable powers of the surrogates are drawn in question. But, for the reason stated in Matter of Thornburgh (72 Misc. Rep. 619, 621), ignoring for the present the constitutional question so serious to the bar and to litigants in this court, let us inquire next what the new legislation portends. Are the surrogates now by virtue of the new legislation possessed of all the equitable powers of the chancellors in these statutory proceedings to determine judicially the accounts of executors and administrators? Has the Surrogate's Court really become a court of equity in proceedings to settle accounts? These are the great questions of the moment. That the new legislation apparently on its face confers most extended equitable powers cannot be denied. But very late decisions of the higher courts have already confined such grants of equitable powers to the few instances particularly specified in subdivisions 1 to 8, section 2510 of the Code of Civil Procedure. (Matter of Holzworth, 166 App. Div. 150; Matter of Ryder, 129 N. Y. 640, 642.) Whether such an extended and multifarious equitable jurisdiction is expedient has been much doubted. Mr. Throop, when he revised the Surrogates' Law, was of the opinion that the surrogates ought not to be burdened by the trial of too many issues. (See Throop's note to Code Civ. Proc. § 2742.) But whatever his power may be, the surrogate's jurisdiction over accountings still depends upon the presence of the real parties in interest as only those cited are bound by the decree. (Matter of Killan, 172 N. Y. 547; Matter of Gall, 182 id. 270.) From the foregoing survey of the jurisdiction of the surrogates in proceedings to settle the accounts of testamentary proceedings it must be apparent that the surrogate is not in loco cancellarii and has not the extended equitable powers and jurisdiction of a chancellor. If this is so the surrogates' power to refer the issues arising in such proceedings is wholly governed by the statute, and by the statute only. Section 2536 of the Code of Civil Procedure regulates references by the surrogate. He may appoint a referee "to examine an account rendered; to hear and determine all questions arising upon the settlement of such account which the surrogate has power to determine." I can find in this language no authority to refer part of an account and objections to a referee to hear and determine. While the chancellor undoubtedly had such power, the surrogate has it not. I come next to the consideration of motion No. 2 for leave to file an additional affidavit in the accounting proceeding. Samuel Riker, Jr., one of the trustees, makes application to have filed in the accounting proceeding an affidavit in which he states that "after the date of the filing of the account of the trustees in this proceeding there was brought to my attention a ledger kept by the said testator, Thomas Rutter, which said ledger contains certain entries which, although obscure and somewhat difficult to understand, seem to indicate that at the time of his death his son, John R. Rutter, since deceased, and J. Edgar T. Rutter were indebted to him in large sums of money." Said affidavit further states the finding of certain papers purporting to be receipts signed by said John R. Rutter and J. Edgar T. Rutter, acknowledging payment or part payment of legacies and containing statements of advancements made to them by the testator. The trustees now move that said affidavit be filed "to the end that the same may be investigated and that the facts disclosed upon such further investigation shall be considered in directing any distribution of the estate under the terms of the will." If the affidavit were filed, and if the court were inclined to make such an investigation, all parties interested in the accounting proceeding would be entitled to notice of the application. The only parties who actually received notice of this motion are those who have appeared by attorney. Those parties required to be cited upon the accounting and who did not appear in the proceeding by attorney have received no notice of this application. Proper and orderly practice would seem to require the trustees to file an amended or supplemental account setting forth the additional facts they desire to have appear in the record. An issue could then be raised by way of objections in the usual manner. This is not a case of construction of a will, where an executor or trustee may ask for directions from the court. This is a matter where the trustees themselves are required to make a decision based upon their own judgment as to whether or not an error was made in the statement of advancements. Unless the trustees make such a decision, there is no way in which an issue can properly be presented to the court. This court has no power to instruct trustees in the matter resting in their judgment or discretion. Aside from the question of practice, it appears that the trustees are precluded from now raising the question of the amount of these advancements. In Schedule II of the account of the executors and trustees filed in this court June 14, 1897, among "the debts and claims owing to the said decedent at the time of his death collected by us as executors and the amounts realized therefrom" is the following: "Claim against J. Edgar T. Rutter for one thousand seven hundred and ninety-seven dollars and sixty-three cents advanced to him by Thomas Rutter in sundry amounts at sundry times between the year 1890 and the year 1895, both years inclusive, collected on 25 November, 1895, $1,797.63." And also: "Claim against John R. Rutter for seven thousand nine hundred and fifty-eight dollars and sixty-eight cents, amount of balance to his debit, entered in the ledger of Thomas Rutter as of 3 May, 1895, the date of the death of Thomas Rutter, collected or settled as follows: $7,958.68." The decree of November 12, 1897, judicially settled the account of 1897 as filed, and discharged the executors and trustees as to all matters embraced therein. Section 2738 of the Code of Civil Procedure (former § 2733), provides that advancements must be adjusted by a decree for distribution in the Surrogate's Court. Such an adjustment having been made by the decree of November 12, 1897, the matter of advancements must now be regarded as finally settled. (Matter of Elting, 93 App. Div. 516.) It will also be noted that the executors and trustees in their account of 1897 stated the total amount of advancements to the two sons of the testator down to the time of testator's death. The judicial settlement of said account, therefore, bars the executors and trustees from questioning in a new accounting proceeding the correctness of their previous statement of advancements. (Chester v. Buffalo Car Mfg. Co., 183 N. Y. 425.) In my opinion the application of the trustees to file the additional affidavit should at this stage be denied. I next approach motion No. 1, to wit, the application of Beatrice R. Moore for delivery of part of her share of the estate. This application is made under sections 2689 and 2690 of the Code of Civil Procedure (former §§ 2804 and 2805). The trustees contend that this court has no jurisdiction to make the order applied for during the pendency of the accounting proceeding. It is said that the pending accounting proceeding has the same parties and involves the same issues as the application under consideration, and that therefore this application should be denied and Mrs. Moore should be remitted for relief to the accounting proceeding in which she can admittedly obtain the |