concurred in the reversal, upon the ground that the administrators and administratrix and Bexford were erroneously allowed to testify; and upon the ground that Smith's receipt as guardian, to himself as administrator, was improperly received in evidence. He did not express an opinion Upon any other point.
Mason, J.The auditor committed an error in allowing these- administrators to be sworn in behalf of each other. They were not competent witnesses for each other under the common law rules of evidence, or the statutes relative to proceedings before surrogates. And our code of procedure in civil actions has no application to proceedings in surrogates’ courts; (Woodruff v. Cox, 2 Bradford, 223; Sherman v. Youngs, 6 How. Pr. R. 318; Burritt v. Silliman, 16 Barb. 198, 201;) and the surrogate erred in basing his decree upon this evidence.
They are not competent witnesses on this final accounting before the surrogate, at common law. (Pack v. The Mayor &c. of New York, 3 Comst. 489. 1 Phil. Ev. 69.) Being a party to the record was enough to exclude them, at common law, either in behalf of themselves or their co-administrators, although they had.no interest in the suit. (4 Comst. 489.) In actions at law administrators are incompetent witnesses for each other. (1 Greenl. Ev. 371. Fort v. Gooding, 9 Barb. 371. Woods v. Skinner, 6 Paige, 76. Rogers v. Dibble, 3 id. 238. Dean v. Thornton, 3 Kernan, 266.) They were incompetent witnesses, in equity. They all gave a joint bond with sureties. They all united in returning an inventory, and all have power over the personal estate. They are all parties to these -proceedings before the surrogate on the final accounting, and are all attempting to promote their own interests by accounting for the property so as’to avoid liability. They are *349all equally, prima facie, liable to creditors and the next of kin for the property mentioned in the inventory. (2 Kent’s Com. 507, 8, 4th ed.; 3d ed. 414, 15. 1 Bradf. Surr. 321, 333. 2 id. 220, 221. Wright’s Ex’r’s Guide, 92, 104, 114. 2 R. S. 146-149, 3d ed.) And if we strike out the evidence of these administrators themselves there is nothing in the case showing any thing but the ordinary case of joint liability on these administrators, for all the assets embraced in the inventory ; and the rule is well settled that when an objection is made to the competency of a witness, upon testimony already given, and he is sworn and examined under the objection, the court cannot take his evidence into account in determining the question of his competency. (Mott v. Hicks, 1 Cowen, 513.) They are not competent witnesses in equity. (Clark v. Clark, 8 Paige, 153, 159. Johnson v. Corbett, 11 id. 277. Eckford v. DeKay, 6 id. 565. 2 id. 54, 60. 1 Barb. Ch. R. 585. 1 Greenl. Ev. § 361. 3 id. § 314. 2 Cowen & Hill’s Notes, 1550.)
The statute in regard to proceedings before surrogates on the final accounting makes no provision for the examination of the administrator, either in his own behalf or on hehalf of his co-administrator; except that the 55th section 2 R. S. 92, allows the administrator to support by his own oath any item of expenditure not exceeding $20, by his swearing positively to the fact of payment, specifying when and to whom such payment was made; but it expressly provides that such allowances shall not in the whole exceed $500, for payments in behalf of any one estate. The 54th section, 2 R. S. 92, does not authorize the examination of an administrator, either on his own behalf or in behalf of his co-administrator. That section only contemplates an examination at the instance of the adverse party, and no other construction has ever been put upon it. The 55th section shows that the legislature must have intended this, as it forbids the establishment of payments of over $20 in any one item, and in the aggregate not exceeding $500; and by necessary implication, therefore, forbids the *350idea that he can give evidence generally in regard to payments and as to the effects of the deceased which have come into his hands, and the disposition thereof. It is no answer to this objection that Whitman Willcox, one of the administrators, was called for Mrs. E. B. Smith, one of the heirs, for Mrs. Smith had not filed any objections to the account; and besides, her husband was one of the administrators whose accounts were being contested; and as Whitman Willcox, jun. died in 1845, prior to any of our enabling statutes in behalf of married women, her husband was entitled to take whatever of personal property might come to his wife from that estate. It was legally his and not his wife’s. It is entirely manifest that Whitman Willcox was examined in behalf and for the benefit of the administrators, and not the contestants. The contestants object to 'his being sworn, and the whole course of his examination shows that it is the merest pretense in the world to allege that he was called for Mrs. Smith as heir. He was called by Mr. Rexford, who appeared for both Smith and his wife—nominally for Mrs. Smith, but in reality for E. B. Smith, one of the administrators. And an equally palpable error was committed in allowing E. B. Smith to be examined as a witness in behalf of his co-administrator, Mrs. Willcox, and Whitman. And a more flagrant error was committed in. allowing Mrs. Willcox, the administratrix, to he examined as a witness in her own behalf and for Whitman, her co-administrator.
But it appears from the case that each of these administrators was not only allowed to give evidence for the other, hut they were fully examined, not by the contestants, hut by their own- counsel and in their own behalf, and their evidence, it seems from the case, must have had great control both with the auditor and surrogate upon the accounting.
There was an error committed in allowing B. E. Rexford to he sworn and examined as a ■ witness in behalf of E. B. Smith, one of the administrators. He is one of the sureties to the administrators’ bond, and was interested to reduce the amount which might he decreed against the administrators on *351the final accounting, as it would thereby diminish his own liability. That the surety in such a case is an incompetent witness in behalf of the administrator is a proposition too plain to be discussed. It is a stubborn and inflexible rule that if a witness has a direct interest, however small, in the event of the cause, he cannot be admitted to testify upon the trial, in favor of that interest, in any respect or degree. (Butler v. Warren, 11 John. 57. Hubbly v. Brown, 16 id. 70. id. 195. Smith v. Bradstreet, 5 Cowen, 214, 215.) The decree of the surrogate on the final accounting of the administrators is conclusive evidence against the sureties, in an action on the administrator's bond. (2 R. S. 53, 116, § 19. 12 Wend. 492. 3 McCord, 225, 412. Lucas v. Guy, 2 Bailey, 403. The Ordinary v. Coudry, 2 Hill’s S. C. R. 313. Head v. Giles, 12 Pick. 53. The People v. Dunlap, 13 John. 437.) And we so held in The People, ex rel. Trowbridge, v. Judah Pierce and others, (in MS)
The following cases are referred to as authorities holding the sureties to this bond to be 'inconrpetent witnesses for the administrators on this final accounting. (Niles v. Brockett, 15 Mass. R. 378. 3 J. J. Marsh. 461. 1 Cow. & Hill’s Notes, p. 109, n. 101. 7 Martin’s Lou. Rep. 373. Wood v. Skinner, 6 Paige, 76. Scott v. Young, 4 id. 542. 5 Watts, 225, 228, 229. 1 Phil. Ev. 49. 5 Serg. & Rawle, 371. 5 T. R. 578. 5 Cowen, 215. 4 John. 293. 11 id. 57. 16 id. 92. 4 Mass. R. 653. 2 Day, 99. 9 Cowen, 128,)
There was another error committed, both by the auditor and the surrogate, in allowing the receipt of Elisha B. Smith as guardian of Mary Ann Merritt, given to himself as administrator, for one thousand dollars paid by himself as administrator, to himself as guardian of Mrs. Merritt. Such receipt furnishes no evidence for himself as administrator. He could not make any contract as her guardian, with himself as administrator, which can be binding on her. Neither can he, with one hand as her guardian, draw a receipt to himself as administrator, and pass it over into his other hand as administrator, *352and claim it as evidence against his ward, of the payment of $1000, or as evidence of payment in his own behalf as administrator. . The law will not permit him to act in such a double capacity. The great danger of imposition, in such cases, has induced courts of equity to indulge in the presumption of fraud, against such acts, although the fraud may be inaccessible to the eye of the court. (9 Paige, 242. 4 Kent, 3d ed. 438. Parsons on Cont. 74, 5.) He cannot bind Mrs. Merritt, his ward, when he acts thus in a double capacity. She is. entitled to have her guardian free from such temptations, when he assumes to deal with her interests and bind her. The case in principle is analogous to that of an agent, who assumes to act for both parties in making a contract or transacting business ; (Parsons on Cont. 74, 5; Story on Agency, §§ 9, 192, 211,214,210; Dunlap’s Paley on Agency, §§ 33, 4;) in which case the law adjudges the contract or transaction presumptively fraudulent. This principle is applicable to all persons placed in situations of trust or confidence, and embraces trustees, executors, administrators guardians, agents, &c., &c. It embraces all who come within the principle.' (9 Paige, 241, 242. 5 Vesey, 678. 1 id. 287. 2 id. 317. 1 Russell & Myl. 58. 2 Myl. & K. 819. 1 Mason, 341. 6 Pick. 196. 2 John. Ch. 252. 5 id. 38. Hopk. Ch. 515. 9 Paige, 237. 4 Cowen, 103. 8 id. 502. 9 id. 234. 12 id. 355. 1 Bro. C. C. 119. 5 Paige, 650. 2 Myl. & Cr. 574. 4 id. 134. 6 Ves. 625. 1 Story’s Eq. Jur. § 315, 316. 2 Mason, 369. 1 Jac. & Walker, 294. 1 John. Ch. 27. 2 id. 394. 3 Ves. 740. 4 Denio, 575. Angell on Fire and Life Ins. 454,455. Parsons on Cont. 74, 75.)
This receipt then was not a legal voucher for Mr. Smith, for the payment of this $1000, and the charge is not helped by his ex parte affidavit, annexed to his account. This affidavit and receipt are the only evidence introduced to sustain this claim of $1000; and both the surrogate and auditor committed an error in allowing it to be proved by such evidence.
This receipt is but an admission of the person making it, *353and he cannot, as we have seen, make an admission for Mrs. Merritt, as guardian, in his own favor as administrator, to relieve himself from $1000, and charge it to her. Such a doctrine would subvert the rules of evidence, and make his own receipt in fact evidence in his own favor.
It is very questionable also whether Mr. Smith, as guardian, had any authority to pay over the capital of his ward’s funds without the order of the court. In allowing the maintenance of the infant, the court usually confines itself within the limits of the income of the property, and certainly without the express sanction of the court, a guardian will not be permitted, of his own accord, to break in upon the capital. (Dayton’s Surrogate, 634, 2d ed. 2 Story’s Eq. Jur. § 1355. 1 Myl. & K. 627. Stephens v. James, Jacob’s Rep. 193. Loyal v. Farlie, id. 265.) And I am inclined to think that the surrogate acted without jurisdiction in making that part of his decree wherein he directs that Mrs Merritt joay the amount found due from her to the persons named therein, and if not paid that it be a lien on her share of the Eli H. Willcox property. (2 R. S. 93, §§ 61 to 63. 2 Selden, 221.) Surrogates' courts are courts of special and limited jurisdiction. (3 Barb. 341. 1 Hill, 130. 10 Barb. 309, 523.) The extent of the surrogate's decree is limited by the statute to the particulars enumerated in section 65, 2 revised statutes, 93. (3 Barb. 341. 10 id. 309.)
The auditor allowed the certificates of third persons to be received in evidence to prove facts directly tending to vary and reduce the inventory. These certificates were introduced as vouchers. How vouchers on the final accounting are made evidence for the admistrators only to show payments of debts and legacies, and of funeral charges; and just and necessary expenses. (2 R. S. 92, § 54.) These vouchers derive their entire competency and force, as evidence for the administrators, from the statute which allows them as evidence to prove the facts stated in the statute. These certificates were allowed for the purpose of showing the decrease of the estate; that *354debts inventoried as dué the estate were not due, or only partly due; that they had been reduced by payments made to Whitman Willcox, jun., in his lifetime. They cannot be received as evidence to prove such facts. They are vouchers in the administrators’ hands only of the payments made by them, and are then limited to the class of facts specified in the statute, to wit: payment of debts, legacies, funeral charges, and just and necessary expenses. (2 R. S. 92, § 54.) These certificates are not made evidence by being accompanied, some of them, by the affidavits of the persons giving the certificates ; for the affidavits are extra judicial, and are not evidence. (2 Cow. & Hill’s Notes, p. 944, note 689.) It is very clear to my mind, that these certificates and extra judicial affidavits of the persons making them, are not evidence to decrease the estate, or reduce the assets as fixed by the inventory and affirmed by the oaths of the appraisers and administrators. The inventory is made by sWorn appraisers, in pursuance of the statute, and the administrators take and subscribe, an oath to be attached thereto, to the effect that .it contains a full statement of all the personal property of the deceased which has come to their knowledge, and that it is in all respects just and true, &c., (2 R. S. 85, § 16,) and the inventory must contain a statement of the securities belonging to the estate, and the amount collectable on each security. (2 R. S. 84, § 11.) The general rule undoubtedly is that the administrators aró prima facie accountable for the whole amount of the inventory at its appraised value. (Dayton’s Surrogate, 248, 267, 268 and 269. 2 Kent’s Com. 515, 516, 8th ed.; 415, 3d ed. 2 Bradf. Sur. R. 221 Wright’s Executor’s Guide, 92, 104,114. 2 R. S. 82, §§ 4, 5, 6,11. 3 id. 640, § 10, note.) And the debts inventoried and not designated as desperate must be accounted for as assets in the hands of the administrators, or good cause shown for not collecting them. ( Wright’s Ex. Guide, 92,104,114. 2 Bradf. Surr. 220. 11 Wend. 361.)
I concur with my brother Balcom in opinion, that the item of $5512.20, charged in Mrs. Smith’s account for moneys paid *355Eli H. Willcox, were improperly allowed by the auditor and surrogate, for the reasons stated in the opinion of Justice Balcom, and for the additional reason that testimony was improperly allowed to prove this item, and it is not proved by other evidence.
[Broome General Term, January 5, 1858.The statute of limitations furnishes a complete bar to Mr. Smith’s claim for the two notes of $735.59 and $800, paid by him at the Chenango Bank, July 8,1845, and in October, 1845 ; (Treat v. Fortune, 2 Bradf. 116;) and besides, the inventory furnishes presumptive evidence, at least, that this claim, if it ever existed, had been extinguished. And in addition to this, the confession of the judgment by Smith on 17th May, 1847, for $3000, in favor of this estate, is prima facie evidence to rebut the existence of any such claim. And indeed it is a most solemn admission of an actual indebtedness, on his part, to this estate, of that amount, if it is-not conclusive upon him. (5 Denio, 304. 2 Selden, 461.) And if .we strike out the evidence of Mr. Smith and Bexford, as we have seen that we are obliged to do, there is no evidence in the case to overcome the effect which the law attaches, in its presumptions, to that judgment.
Decision. Decree of the surrogate reversed; and the whole case referred back to be reheard before the county judge of Chenango county, acting as surrogate; and ordered that the costs of Mary Ann Merritt, Bradford Willcox and Charles Willcox in the surrogate’s court, as -well as their costs on the appeals to this court, and also the fees of the auditor, be charged upon and paid out of the estate of Whitman Willcox deceased, in the hands of the administrators and administratrix; and that the costs of the administrators and administratrix in the surrogate’s court (except the fees of the auditor and surrogate) .as well as their costs on the appeals to this court, be borne by them personally; and that Bexford, Mygatt and Snow pay their own costs on the appeals to this court.
Gray, Mason and Salcpm, Justices.]