I concur in so much of the opinion of Mr. Justice Williams as decides that the failure to issue an execution upon the surrogate’s decree and to have the same returned did not defeat the plaintiff’s right of action; "but I am constrained to dissent from his conclusion respecting the liability of the sureties for the moneys received by the general guardian upon the sale of the infant’s real estate.
Confessedly the proceedings for such sale were' irregular, and while, as between the infant and his general guardian, such irregularities might be waived by the former upon his reaching his majority, it is doubtful if his waiver would affect the liability of the sureties upon the guardian’s bond, their obligation being striptissimi juris. But however this may be, I do not think that a liability for moneys arising from a sale of the infant’s real estate was within the purview of the general guardian’s bond.
A proceeding for the sale of an infant’s real estate is statutory, and one in which all the requirements of the statute should be literally observed. One of such requirements is that a special guardian *463of the infant must be appointed, and that such special guardian must file a bond, conditioned for the paying over, investing of and accounting for all moneys received by him in the proceeding (Code Civ. Proc. §§ 2351, 2352), which moneys are to be deemed real property and are to be invested for the benefit of the infant, under the direction of the court, whose ward the infant is. (Code Civ. Proc. §§ 2359, 2360, 2361.) Thus it will be seen that the general guardian has nothing to do with a proceeding of this nature, and is not entitled to receive the moneys arising therefrom. It would seem to follow, therefore, that the ordinary bond of such a guardian does not embrace the receipt and disposition of moneys arising from the sale of the real estate of his ward; and this, as I understand it, is the rule laid down by the adjudicated cases. (Muir v. Wilson, 1 Hopk. Ch. 512; Cook v. Lee, 6 Paige, 160.)
Such being the rule, I think it equally well settled that, whatever the liability of the general guardian may be, as between himself and his ward, he cannot, enlarge the obligation of his sureties by receiving and charging himself with moneys which he had no legal right to receive and for which a special bond should have been given. (Johnson v. Chamberlain, 18 App. Div. 495 ; S. C., 46 N. Y. Supp. 132, 135; Lyman v. Conkey, 1 Metc. 317 Williams v. Morton, 38 Maine, 47.)
If these views prevail, a new trial must still be had for the purpose of correcting the error of the trial court in dismissing the plaintifPs complaint as to the smaller of the two items which go to make up his claim.
McLennan and Spring, JJ., concurred.
Judgment reversed and new trial ordered, with costs to the appellant to abide event.