First. The statute above quoted, and upon which the administrator's counsel relies to relieve him of this interest, is not applicable to administrators.

Second. Had the statute included administrators, as well as executors, it would not relieve him, and an executor would be chargeable with such interest under the same circumstances.

Third. It is not equitable, just and fair to the other next of kin to absolve him from accounting for such interest.

1. It will be observed that the language of the Code above quoted specifies executors, and does not refer to administrators. It is a re-enactment of a provision of the Revised Statutes which was originally enacted for the purpose of changing the common-law rule, which theretofore prevailed, to the effect that when a creditor named his debtor as executor of his will, upon the issuing of letters testamentary to him the debt became discharged. No such rule ever prevailed in respect to administrators, hence the statute was not made to apply to administrators. There is no statute of like import in respect to administrators.

In Keegan v. Smith, 33 Misc. Rep. 76, it was said that, "The principle embodied in these provisions of the Code is equally applicable to administrators." This is true, but only to the extent of requiring them to account for their own indebtedness to the estate to the same extent, and with the same justice and value to the estate as though the debt or obligation had been that of some person other than the administrator. If the case last referred to holds more than that it is erroneous, but I do not think it does, or that there is any case that goes farther than that.

In Soverhill v. Suydam, 59 N. Y. 142, it is said that when an executor has paid out the monys due from him to the estate in due course of administration, that then, and not till then is his indebtedness discharged. "But before this is done, it was not in our judgment the intention of the legislature, while

preserving the debt, to discharge liens by which it might be secured. Subjecting the executor, as between him and those interested in the estate, to liability for his debt as for so much money in his hands, does not necessarily discharge a lien on real estate by which the debt may be secured. That provision merely superadds to his original obligation, a liability to account as executor for the amount of the debt, and was intended to facilitate the administration, and for the benefit of the estate, and not for that of the executor or of his individual creditors who may have subsequent liens upon his property. It certainly would not be so treated in a proceeding of an equitable nature, like the present. That the debt and lien may under the very terms of the act, exist in their original form after the debtor has entered upon the duties of his office, is apparent."

In Baucus v. Barr, 45 Hun, 587, the court say: "We are of the opinion that the provision of the statute declaring that a debt due from an executor to the estate shall be treated, in the rendering of his account, as money in hand, must be construed with reference to the ordinary obligation, which imposed on him only diligent, faithful, honest action touching the administration of the estate committed to his charge."

"While

In Baucus v. Stover, 89 N. Y. 5, the court say: the debt must be treated as money in his hands for the purpose of administration it will not for purposes stand on the same footing as if he had actually received so much money."

It thus seems certain that it was never intended that the statute in its application to executors even, nor the principle of the statute in its application to administrators should be a law or rule by which some advantage could accrue to a representative debtor which he would not have but for the statute, and by which there would inure to him inequitable benefits over other beneficiaries of the estate.

Clearly, such would be the result if the rule contended for by the administrator in this case should prevail.

Matter of Clark, 11 N. Y. Supp. 911; S. C., 34 N. Y. St. Repr. 523 (decided by the General Term of this Department, Judge Hardin writing the opinion), was a case of two executors, one of whom was indebted to the estate at the time of the testator's death, and the debtor executor did not pay the debt to his coexecutor, or put the money to pay the debt into the funds of the estate, and it was held that such executor was chargeable with interest on such indebtedness down to the time of the accounting, The question of charging the executor with such interest was directly passed upon.

Under the authorities above cited it is clear that were this representative an executor, he could not acquire under the statute or otherwise, this advantage over legatees, or other beneficiaries by reason of his indebtedness to the estate; that is, the advantage of having his share of the estate paid at once upon his appointment by the canceling of his own interest-bearing debt; however, not being an executor, but being an administrator he cannot have whatever protection (if any) the statute affords to an executor, as the statute was intended to, and does apply solely to executors by its terms.

The administrator has had the benefit of the interest on these two mortgages. He has not paid them, and, therefore, has had the use of the money due upon them, to the same extent, and same advantage to himself since the death of his intestate as before; and to the same extent and advantage that would have pertained had his intestate lived until this time. If the money due upon these mortgages is regarded the same as though paid into the estate by him, then, in that case he has had the use of the money and benefit of such money to the same advantage to himself as though he had received it, and immediately loaned it out at five per cent., and received the interest thereon until this time.

A general and underlying principle, which it is always wise to adhere to, and safe to tie to under almost any circumstances,

is that a trustee, executor, administrator, or guardian cannot so use the property of the estate he represents as to make any profit, or receive any advantage to himself over others interested in the estate.

In this case this administrator in his account, as made up by him, clearly received the advantage of the interest accruing upon these mortgages from the time of the intestate's death until distribution over that of his sister, Mrs. Hotchkiss, who is equally entitled with him to share in the assets of the estate.

This $1,800 being well invested, and payment of which could be had and declared at any time when the same should be needed for actual distribution by crediting the estate with the amount, and charging the same to Nathan E. Davis' distributive share, it was the duty of the administrator to leave it so invested until required in actual distribution. If, on the other hand, it should be claimed that because these mortgages were due, that the debtor administrator had the right to pay them at any time, then he could only properly discharge them, and stop the running of interest upon them by actually paying the money into the estate, and thereby increasing the fund on hand for distribution, and placing himself in a position where a distributee, equal with himself, would have the right to demand a distributive share of this $1,800, and interest.

Under the rule above alluded to, that an administrator shall not so manage the estate as to make any advantage to himself over other distributees equally entitled, it is at least doubtful whether he could rightfully distribute moneys to himself in an amount in excess of that distributed to Mrs. Hotchkiss without being liable for the interest on such excess.

But, I think, it is clearer and better to hold that he should account for the interest upon the mortgages from the time of his intestate's death to the entry of the decree herein.

Much more might be said in support of this contention, but the foregoing is sufficient to show that it is equitable, and right

to charge this administrator with interest upon the mortgages, and that the statute relied upon by him does not relieve him therefrom.

There should be added to Schedule A of the supplemental account the amount of the interest upon $1,800, at five per cent., from March 23, 1901, to the time of the entry of the decree herein.

If the respective counsel fail to agree upon a decree, in accordance with this decision, the same will be settled by the surrogate upon five days' notice.

Decreed accordingly.

Matter of Proving the Last Will and Testament of CATHARINE JOHNSON, Deceased.

(Surrogate's Court, Herkimer County, February, 1902.)

WILL-LEGATEES WHEN NOT CUT OFF BY BEING SUBSCRIBING WITNESSES TO A CODICIL.

The fact that legatees under a will are subscribing witnesses to a codicil endorsed upon it does not preclude them from taking under the will where it alone is proved and the codicil does not benefit them and is not necessary to the proof of the will.

Proceeding to prove a will.

James Conkling, for petitioners.

J. B. & J. E. Rafter, for contestant.

DEVENDORF, S.-The petition, as presented and filed herein, alleges that the deceased made and executed a certain instrument in writing, bearing date June 22, 1897, as, and for her last will and testament, and that the same by its terms relates to both real and personal property. Probate of such instru