Varnum, S.

This motion was argued before Surrogate Arnold and has now been submitted to me for decision. The administrator herein paid the proceeds of a certain legacy given by decedent to the latter’s "widow, in recognition of an alleged assignment. The referee properly found that no such assignment took place, and that the account of the administrator should be surcharged with the amount of the moneys so paid out by him. It is contended that the court had no jurisdiction to try this issue. It is true that, where an apparently valid assignment of a legacy is attacked on the ground of fraud or mistake, the Surrogate’s Court, not being a tribunal with equity powers, has no jurisdiction to determine the validity of the paper. Matter of Randall, 152 N. Y. 508. Such is not the case here, however. The question whether or not the decedent made the assignment under which the administrator assumed to act presented an issue of fact not call*113ing for the exercise ‘of any equity power. The issue was not the validity, but the existence of an assignment. The administrator, by allowing the claim made to the proceeds of the legacy, did not preclude the persons interested in the estate from inquiring into his act and contesting its priority." Matter of Perry’s Estate, 5 Misc. 149, 25 N. Y. Supp. 716, 720. It appearing that a will of the decedent has been probated, and letters issued thereunder, since the filing of the report of the referee, the payments directed cannot at this time be made. In all other respects, the exceptions filed are overruled, and the report will be confirmed. The decree to be entered should direct the administrator to pay the. surplus in his hands to the executor, to whom letters have been issued.

Decreed accordingly.