—The term “ next of kin” (in regard to this remedy) means those to whom, under the act of distribution, the personal estate of the deceased would pass.
The action is properly brought against the infants, when the amount of the estate belonging to them has been paid over to the general guardian.
In such a case the judgment should direct the money to be paid out of the funds in the hands of the guardian.
Mere delay in foreclosing a mortgage, without any request or notice to foreclose, and where the interest has been paid, is not enough to charge on the mortgagees the consequences of a fall in the value of the property.
The sale by the widow of her interest in the estate, left her liable for the amount of the personal estate received by her assignee, to the same extent as if received by herself.
No judgment should be rendered against the defendant, ¡Richard H. Hinman, and the same must be so far modified as to omit any recovery against him.
Judgment modified so as to strike out any recovery against Richard H. Hinman, and to direct the recovery against the infants to be paid out of the moneys in the hands of the guardian.
Present, Clerke, P. J.; Gould and Ingraham, ,JJ.