¶1On a final accounting before the surrogate, Hrs. Horton claimed, as one of the next of kin, a distributive share of the estate; and Decker claimed the proceeds of such share under an assignment from Hrs. Horton to him. The validity of the assignment was denied by the defendant, and the surrogate decided that it was illegal and void, and decreed payment to the defendant. From this decree the plaintiffs appeal.
¶2It is not clear that the surrogate had any jurisdiction to . try the question as to the validity of the assignment. The proper course for the plaintiff (the assignee) was, to. have brought an action on the assignment in a court of law; or to have had a reference under the statute, and had the rights of the parties there adjudicated. If they neglected to take this course, and leave the administrator to settle his accounts with the assignor, they cannot afterwards ask the surrogate to try a question of this kind on the accounting.
¶3But upon the merits, I think the surrogate, if he had jurisdiction,- did not err. The assignment was made by the wife *485to save her husband from prosecution, for what, if proved, would , have amounted to a felony. It was given under a threat of prosecution, and to send the husband to prison if the assignment was refused. The suggestion, that the evidence'was not sufficient to convict Horton, if on trial, and therefore not sufficient to affect the validity of the assignment, might be available under a different state of facts. In the present case, the execution of the assignment was obtained by the representations of the plaintiff that the offence had been committed, and that he would imprison Horton if the assignment was not executed. When the representations on which the paper was executed are such as to lead the party to act on the suggestion that a felony had been committed, the party making them is concluded as to the truth of such statements, and he cannot be allowed to sustain the validity of the assignment by alleging such declarations to be untrue. They were acted upon by the party who executed the assignment, and the truth of them cannot be denied.
¶4It was urged, on the argument, that part of the consideration was legal, and therefore the contract could be enforced. But the contrary is the rule. In Bose v. Truax (21 Barb., 361, 379), it was held that “where an entire agreement contains an element which is legal, and one which is void, being against public policy, the legal consideration cannot be seperated from that which is illegal and void.”
¶5Decree reversed, and case sent back to the surrogate to correct the accounting as above stated, with costs against plaintiffs.
¶6Sutherland and Leonard, JJ., concurred.