The question here is, whether an administrator, who is also the general guardian of the infants interested in the goods he is administering, can have a settlement of his accounts, both as administrator and as guardian, in a Court of Law, in an action for the partition of real estate, in which he and his wards are co-defendants; such settlement embracing, moreover, claims made by him against his intestate, arising out of personal transactions between himself and the intestate. I am called upon to respect such a judgment as precluding me from investigating what are certainly most suspicious circumstances, under which the property of these infants has, in a large degree, been taken from them and given over to their guardian, the administrator of their father’s assets.
In the partition action, John B. Moreau filed an answer in which he, individually, claimed one-third interest in the real estate sought to be partitioned, and set up, also, that he was • administrator of the goods of the father of these minors, "and their general guardian; he claimed that, both as administrator of such goods and as guardian of such infants, he had made certain advances which should be reimbursed to him, out of the funds to be realized from the minors’ shares on the sale. A guardian ad litem was appointed for the minors on this petition.
The sixtieth rule of the Supreme Court forbids the appointment of a guardian acl litem for infant defendants who is not their general guardian, or an attorney or officer-of the .Court, who is fully competent to understand *476and protect their rights. In this action, it appears' that the guardian ad litem appointed was not the general guardian of the infants, nor was he an attorney or officer of the Supreme Court, and he was obliged to -appear by an attorney. -- .
Upon the reference, one witness only, one Charles B. Moreau, was examined before the referee, and he testified as to the property, the-heirs and their relationship. Mo testimony appears to have been taken before the referee to establish the claims which John B. Moreau set up against these .minors, either as administrator, or as guardian, as an individual; , yet these - claims were allowed^ and the attorney for the guardian ad litem consented in writing to the entry of the decree. .
On the investigation before my auditor, dhe attorney for John B. Moreau testifies that these claims were established before the referee by the testimony of John B. Moreau himself, and by documentary evidence.
If the administrator himself proved his claims, it was done in violation of section 399 of the Code, so far as related to transactions had by him with deceased in his lifetime; and his proof would not have been evidence in a Surrogate’s Court as to claims arising after death, under the provision of the statute which requires the production of vouchers (3 R. S., 5th ed., p. 175, § 40), unless supported by a sworn -voucher.
If it would have been error for the - Surrogate to allow such a claim, can the administrator, by going into another tribunal, dispense with the needful proof? And can a guardian ad litem waive proof of a claim against the estate of his wards and consent to judgment without it ?
The rule or principle is established in. Litchfield v. Burwell, 5 How. Pr. R., p. 345. “Meither the guardian ad litem, or any other person,” says the learned justice, “ has power "to waive proof, nor any right without it to consent to, a judgment. This is a rule of law that cannot be evaded,,by .consenting to use-as testimony *477what the law will not recognize as such, and the consent of the attorney for the guardian that what is here called testimony, but which does not rise to the dignity of a well authenticated rumor, should be received, does not justify the referee in acting upon it as evidence.”
In respect to the claims of John B. Moreau, the record does not show that any testimony was offered in support of them on the partition reference, and none appears to have been taken by the referee. John B. Moreau’s testimony, had it been taken, was inadmissible and incompetent; he could not testify to transactions between himself and the intestate in support of his own claims against the estate. Mo other witness, it would appear, was examined in support of them. Mor was he competent to produce documentary evidence, of which he was partly, if not altogether, the author.
The principle is too well settled to need argument that a bill or complaint cannot be taken as confessed against infants under any circumstances, nor their interests decreed away without an answer by their guardian ad litem, and on full proof. Every thing must be proved against infants. And the record must furnish proof to sustain a decree against them, whether the guardian ad litem, has answered or net.
The guardian acl litem, in the partition action, had put in an answer of general denial, and it therefore became necessary that full proof should have been given in support of the claims of this administrator, &c.; yet the record does not furnish a particle of evidence given in support of them.
But even conceding the regularity of the proceedings before the referee, a graver question remains behind. Had the Supreme Court jurisdiction in this case to give iudgment in favor of one defendant against two other defendants ? Mr. Justice Woodruff said, in Tracy v. N. Y. Steam Faucet Company, E. D. Smith’s Rep.,p. 325, that a judgment of-this kind “ is supposed to be warranted *478by section 274 of the- Code, which authorizes the Court to determine-the ultimate rights of parties on each side;'as between themselves.” “"It is doubtful,” he continues, “ whether it was intended to go further than the former practice in Chancery, in settling the rights of defendants as between each othér, as in interpleader suits, suits for partition, suits filed to close a-trust, suits brought for a distribution of a fund, suits brought for the purpose of settling conflicting, claims, and the like, where it was. within the proper scope and object of the action, as exhibited in the complaint, to bring these various or conflicting claims to an issue, and the determination of which was essential to the accomplishment of the very object sought by the bill itself.”
Was the settlement of the accounts of an administrator and guardian, who was one of the parties, with his wards and eestuds que trust, as next of kin of his intestate, “within the proper scope and object of” this partition action “ as exhibited in the complaint ? ” Was the award of these large sums of money to the guardian out of his wards’ shares, “ essential to the accomplishment of the very object ” of the action ? I think not; and I consider the decree of the Supreme Court, to use the language of Mr. Justice Campbell, in Edsall v. Vandemark, 39 Barb., S. C. 600, “was a fraud as against the infants, and should not be permitted to stand, even if the guardian ad litem, had been clothed with authority to make it.”
With respect to John B. Moreau, as administrator, I must hold that he has brought himself under section 37 (33),-3 B. S., 5th ed:; p. 175;-which sáysr -
“No part of the property of the deceased' shall be retained by an executor or administrator,', in satisfaction of his own debt or claim, until it shall have been proved to and allowed by the Surrogate.” His accounts must, therefore, be referred back to the auditor for investigation and report, without" any reference to their alleged settlement in the Supreme Court. - • ...
*479As to his accounts, as guardian, appointed by the Surrogate, I shall assert the jurisdiction of the Surrogate to investigate them. The Revised Statutes (3cl rol., 6th ed., p. 245, § 36) say;
Every Surrogate shall * . * * file in. his office all accounts and inventories (of guardians appointed by him) and shall examine all such. *. ..*
§ 37. “ If, on such examination, the Surrogate shall be satisfied in any case that the interest of the ward requires * * * • that such guardian should be removed * * * such Surrogate shall proceed against such guardian.”
I shall accordingly cite the .guardian, Jqhn B. Moreau, to show cause, why he should not .be removed from his guardianship. He is now under my injunction; and. if he cannot show that lus conduct in seeking and obtaining a settlement of his accounts in the forum to which he has resorted, was justifiable, honest and in, good faith, he must, be removed. . ... . ," .