very relief sought in her separate application for delivery of part of her share of the estate.

It was

Only one important adjudication is cited to me on the question of practice raised by the trustees. In Matter of Ockershausen (10 N. Y. Supp. 928) the contestant in a pending accounting proceeding applied to the surrogate for an order of partial distribution. The surrogate granted the order. Upon appeal to the General Term it was held that sections 2617 and 2618 of the Code, as it existed in 1890 (changed in 1893 to section 2722, which was repealed in 1914), gave power to the surrogate to make the order of partial distribution. urged in the Ockershausen case that the pendency of the accounting proceeding was a bar to the granting of an order for partial distribution under the other sections of the Code above mentioned. The analogy therefore between that case and the situation in the estate before me is very close. In the Ockershausen case the court said: "The remedy which a distributee has under these sections is not within the principle that two proceedings are pending for the same thing, and that the first in time is first in right. The partial distribution can be made while the contest over items which affect the general settlements is going on. The surrogate will not order a distribution so as to make the executor liable for the same money upon final accounting. If the facts are stated correctly in the papers the surrogate left more than enough in the executor's hands to cover all liabilities." The order of the surrogate was therefore affirmed. This case is, therefore, an authority for a partial distribution in this matter.

I have examined all the cases cited by the trustees and by the promovent, and besides the Ockershausen case the only other cases which seem helpful are Matter of Hunt (110 App. Div. 544) and Matter of McQuade (157 id. 344). Both of these cases are, however, distinguishable from the case at bar, and in my opinion they are not authoritative on this motion herein.

It is urged by the trustees that if the technical objection to the partial distribution be determined in favor of the promovent, and, even if the matter rested in discretion, the order applied for should not be made because of the objections already filed to the account, because further objections may be filed and because of the difficulties of transferring the securities to the petitioner or paying her in cash.

All legacies have been paid as well as all debts and administration expenses down to the time of filing the account in 1914. If the objections filed or to be filed are sustained the share of the petitioner will be increased. If the objections are overruled her share remains practically the same. If the trustees were permitted to raise the question of further indebtedness to the estate by J. Edgar T. Rutter and John R. Rutter on account of advancements that were not taken into consideration in the account of 1897, and if it were determined that further deductions should be made from the shares of Mrs. Moore and J. Edgar T. Rutter, such deduction from the share of Mrs. Moore would still leave the value of her interest well over $100,000. According to the trustees' figures Mrs. Moore's interest in the estate is worth about $114,000. There is no possible way by which harm could come to the trustees if I were to direct that they pay to Mrs. Moore on account of her interest $25,000.

There is some difficulty, however, in the way of such an order owing to the fact that the trustees have placed their own valuations upon the securities comprising the bulk of the estate. They have set aside and made a division of the several securities that are to be paid to the three children of the testator and to Mrs. Moore. A transfer of securities cannot be directed because no consent to a distribution in kind has been filed and no appraisal has been had pursuant to section 2736 of the Code of Civil Procedure. If a partial distribution were to be ordered the decree would necessarily have to direct the trustees to pay

in cash.

This would necessitate the sale of some of the securities. That this difficulty is not a serious one is evident from the fact that, as the accounting proceeding now stands, the decree therein cannot direct delivery of the securities. Such delivery could only be directed upon filing the consents and upon the appraisal provided for by section 2736 of the Code of Civil Procedure. In my opinion the application for a partial delivery should be granted by directing payment to the extent of $25,000 to the petitioner.

I will now go back to motion No. 3 for the usual order of reference of the objections interposed to the final accounts. Some oral testimony will be required, as, for instance, testimony as to the reasonableness of the amount of $2,552.85 paid to the attorney for the trustees according to Schedule VIII of the account and objected to in paragraph VIII of the objections filed by Beatrice R. Moore. Further testimony will in all probability be required to substantiate payments amounting to $486 set forth in Schedule XXV of the account and objected to in paragraph XII of the objections filed by Beatrice R. Moore. Testimony will also be required on several other minor objections interposed by said Beatrice R. Moore. The several accounts should be consolidated in the usual way. Thereupon I shall direct that an order of reference be made to David B. Ogden, Esq., counselor at law, to hear and determine all questions arising upon the settlement of such accounts. This seems

to me to be a just and proper disposition of the motion to refer. Let the various orders be settled, on the usual notice, in conformity with this opinion.

Decreed accordingly.

Matter of the Petition of ROCKIE BELLE JUDSON and HAROLD J. SCHAPER to Prove the Last Will and Testament of CHARLES S. SARGENT, late of the County of Kings, Deceased.

(Surrogate's Court, Kings County, October, 1915.)

EXECUTORS AND ADMINISTRATORS-RIGHT TO LETTERS-WHEN INSTRUMENT PURPORTING TO BE A LAST WILL AND TESTAMENT DENIED PROBATE-WHEN RIGHT OF WIDOW TO LETTERS ABSOLUTE.

Where there is an executor or administrator whose right to letters appears and who asserts such right no temporary administrator can be appointed nor does the pendency of an appeal from the decree which recognizes such right afford any reason for delay in the granting of letters to such executor or administrator.

Where an instrument purporting to be a last will and testament is denied probate, the right of the decedent's widow to letters of general administration upon his estate is absolute.

PROCEEDING upon the probate of a will. Application for the appointment of a temporary administrator.

Andrew F. McNickle, for applicants, proponents.

Frank X. McCaffry, for contestant, objectant.

KETCHAM, S.- This is an application for the appointment of a temporary administrator of the decedent.

A paper propounded as the will of said decedent has been denied probate, and an administrator of his estate has been appointed and has received letters of general administration.

The only authority in the books of this state which might suggest any merit in the present application is in the opinion of Mr. Justice BENEDICT in People ex rel. Scofield v. Surrogate's Court (N. Y. L. J. May 28, 1915).

In the case cited a writ of prohibition was sought to prevent

the surrogate of Kings county from granting letters of administration upon the estate of an intestate to one who had been duly adjudicated to be his widow by a judgment of the Supreme Court in an action in which all proper parties were impleaded. Before the writ was asked for, and at a time while appeal from the judgment aforesaid was pending, the surrogate had decided that by virtue of the adjudication in her favor the applicant was entitled to the letters.

The opinion of the learned justice was in full as follows:

"The application for an absolute writ of prohibition, based upon the alternative writ issued herein and dated the 14th day of May, 1915, directed to the Surrogate's Court of Kings County and Hon. Herbert T. Ketcham, Surrogate of Kings County, and Jean Winifred Fitzsimmons, claiming to be the widow of Charles W. Schofield, deceased, must be denied. While it seems quite manifest that it would have comported more with the proprieties that a stranger should have been ap pointed temporary administrator of the estate of the decedent, under section 2596 of the Civil Code, rather than that the alleged widow whose rights are being contested should be permitted pending appeal to secure possession of the entire assets of the estate, consisting of dividend-paying or interest-bearing securities, by means of limited letters of administration issued under section 2557, when the sole purpose to be served will be to enable her to sell the securities at a loss of interest due to such sale, yet this court is without power under the circumstances to interfere. The discretion is vested in the surrogate, and he had jurisdiction to act upon the application. The Supreme Court cannot control the surrogate in matters within the limits of his jurisdiction, which rests in his discretion. The application is denied, wthout costs."

A judcial declaration that it would be proper for a surrogate to appoint a temporary administrator in a case where a person legally entitled to general administration was demanding her