¶1By the Court
¶2Tlie order appealed from directed the executor to deposit in the Trust Company the sum of $7,000, Avith interest from 14th November, 1857, *11upon the ground that the same had been improperly paid to Francis II. Saltus, and should have been invested pursuant to the directions of the will, or that an attachment issue. The original order disallowed the item of §7,000 charged as paid to Francis II. Saltus, as not authorized to be paid to him, and directed that such moneys should be invested, and decided that the executor was primarily liable therefor.
¶3. That order was affirmed by this court and the Court of Appeals.
¶4On filing the remittitur, the surrogate ordered the executor to deposit- the amount, with interest, in the Trust comp my.
¶5The will of the testator directed the executors to p ;_y to Francis II. Saltus, the interest, rents, issues and profits of one-eighth part of the residuary estate during his natural life, and on his death directed the principal to go to his heirs.
¶6I am at a loss to see upon what ground the surrogate ordered the interest to he paid by the executor, if it had been received by the party entitled to it under the will, Francis II. Saltus. lie had received the principal improperly and the executor was held liable for it, but that did not make him liable, for thirteen years intere t which had boon received by the legatee under the will, to whom it was to be paid.
¶7The difficulty about this point, as urged by the appellant’s counsel, is that the petition of appeal does not state this as a ground of appeal.
¶8The petition states that the order appealed from is erroneous, so far as it orders the issuing of an attachment, and the improper allowance of interest is not appealed from.
¶9In regard to the power of the surrogate to order an attachment to issue, the tenth section of title 1, ch. 2, part 3 of Revised Statutes, vol. 3, p. 301, is full upon this subject.
¶10That sec don authorizes the surrogate to enforce all lawful orders and decrees of his court by attachment against the persons of those who shall neglect or refuse to comply with such orders and decrees. (Seaman v. Daryea, 11 N. Y., 324.) For the purposes of this appeal sve must consider this order as a lawful order of the surrogate, and there is no good rea*12son why he should not have power to enforce obedience thereto.
¶11The case of Doran v. Dempsey (1 Bradf., 490), holds that if the executor is unable to pay, he will not be imprisoned, unless the act complained of was fraudulent or the party willfully refuses to pay what he has the means of paying, because the creditor can have an execution. These questions do not arise on this appeal. When the appellant is arrested on the attachment he will have the opportunity of showing any reasons why he should not be committed. At present we have no knowledge of the merits, and there is nothing in the papers from which such knowledge can be obtained.
¶12It is suggested that the order was ex parte. If so, the remedy is not by appeal, but by motion to the surrogate, and upon the question of payment of the interest, we think there is good ground for making such motion if the appellant has not, by delay, deprived himself of the right to do so.
¶13The order appealed from must be affirmed.
¶14Ordered affirmed.