—Several questions were embraced in the appeal, but the principal point was, whether accounts filed by defendants as “ guardians” were properly passed on and allowed by the surrogate; or whether his jurisdiction was confined, under the circumstances of the case, to the accounts which they submitted in their capacity as administrators. It appeared that the petition presented to the surrogate by the defendants was confined to their character as administrators. It made no allusion to any guardianship for the children, or either of them. It simply stated “ that letters of administration on the estate of David Crocker, deceased, were granted to your petitioners on the twenty-third day of May, 1838,” and
3STo amendment was subsequently made enlarging the subject or object of the petition as originally presented, and no averment even of any guardianship, except in the production of the letter of guardianship, to show who were entitled to represent the infant next of kin as such on the taking of the accounts of the administrators. On the contrary, the title of the proceedings, many times repeated, from the original petition to the final decree, was uniformly “ In the matter of the final accounting of Eliza 0. Crocker, administratrix, and Thomas C. Taylor, administrator, of David Crocker, deceased.”
It seems perfectly clear, therefore, that that part of the surrogate’s decree, the last clause but one, which attempts to pass upon the accounts between the infants and their guardian, was coram non judice, and ought to be stricken out. Although void as a judicial proceeding, its continuance in the decree may lead to future embarrassment. The- point raised by it not being a question of the allowance or rejection of any particular items of the account, but a question of jurisdiction, the rule did not require that the items involved should be “ specified in the petition of appeal.” It was sufficient that the party objecting appealed from every part of the decree, and especially from the “ retrospective allowance for the support and maintenance of the family of deceased at the rate of $2500 per annum,” as being “ wrong in principle and unjust as to amount.”
We do not mean to say, however, that a retrospective allowance to a guardian, being the'mother, for the support of her ward, may not be made as an approximate estimate of the entire cost,
As to the furniture left by the intestate, the disallowance of which constitutes another objection to the decree, it belongs one-third to the widow and one-third to each of the two children. The administrators, therefore, discharged themselves of this item by handing over the whole to her, instead of selling it and paying her the proceeds. She took one-third in her own right, and two-thirds as guardian. Whether in twenty years’ use it has been substantially used up as alleged, and as is very probable, we need not at present inquire. Hor, under the present circumstances, do we think it worth the inquiry of the appellant ; except to show, at the proper time, that a proportionately. less allowance was necessary for the support of the children.
As to the real estate, the administrators, as such, were not accountable for its rents, nor liable for its taxes or repairs. Their payments, in that respect, like the others above referred to, can only stand on the footing of payments to the guard’an, to be accounted for by her whenever called upon in that capacity.
The guardian alone had charge of the infant’s interest in the real estate. But the payments were made on her order, and, in law, therefore, were made to her. If these views are correct, and we see no reason to doubt their accuracy, the whole personal property, to which Mrs. Banks was entitled as one of the next of kin of her father, has been duly accounted for by the administrators, of her father, except the sum of $4659.25 in
Something was said on the argument in relation to a mortgage executed by Mr. Crocker in his lifetime for $10,000. By the statute (1 Rev. Stat., 749) it is provided that the heir in such case shall satisfy the mortgage without resorting to the administrator. If, then, it was the duty of Miss Crocker to satisfy this mortgage, it was the duty of her guardian to do it for her; and the appropriation for that purpose made long before her marriage to Mr. Banks, if made at all, although it diminished to that extent the personal property for the benefit of the real, was binding on her, and, of course, on him. It was an appropriation of the property of the ward to pay an obligation which the law had made the debt of the ward, and which it had declared it her duty to satisfy and discharge out of her own property, without specifying whether real or personal, and which the guardian, therefore, it being most beneficial to the ward, was authorized and bound to discharge out of that which was most convenient, and at the same time most insecure, the moneys in hand.
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Present, Roosevelt, Sutherland, and Ingraham, JJ.