
    In the Matter of the Final Judicial Settlement of the Accounts of Watson Turner, as Guardian of the Property of Earl M. Pinckney; Watson Turner, by Willard Turner, his Committee, as Guardian of the Property of Earl M. Pinckney, a Minor, Appellant; Earl M. Pinckney, Respondent.
    
      Infant legatee—concluded by an accounting on behalf of the deceased executor on which such infant was represented by an administrator with the will annexed of the testator — not concluded by the settlement on the same accounting of the accounts of his guardian (who was also such executor) to which proceeding the infant was not a party.
    
    Abram D. Pinckney, a resident of Fulton county, died leaving a will, by which he devised certain real and personal property to his infant son, Earl M. Pinckney. The surrogate of Fulton county issued letters testamentary to Jeremiah S. Austin and also appointed him guardian of the person and property of Earl M. Pinckney. Austin died without having rendered an account, either as executor or as guardian. The surrogate of Fulton county thereupon appointed Watson Turner administrator with the will annexed of Abram D. Pinckney, and the surrogate of Herkimer county, of which county the infant had then become a resident, appointed him guardian of the property of Earl M. Pinckney. Subsequently, in a proceeding instituted by Turner as administrator in the Surrogate’s Court of Fulton county against Austin’s administrator, to which proceeding Earl M. Pinckney was not a party, the accounts of Austin as executor of the will of Abram D. Pinckney, including his accounts as guardian of Earl M. Pinckney, were judicially settled and a decree rendered . adjudging that the trust funds should be turned over to Turner.
    Subsequently the accounts of Turner as administrator with the will annexed of Abram D. Pinckney were judicially settled by the surrogate of Fulton county • in a proceeding to which Earl M. Pinckney was made a party and in which he was represented by a special guardian. The decree rendered in such proceeding directed Turner to pay over a certain amount adjudged to be in his hands as such administrator to himself as guardian of Earl M. Pinckney.
    In a proceeding instituted by Earl M. Pinckney, after obtaining his majority, in the Surrogate’s Court of the county of Herkimer, it was Held, that the interest of Earl M. Pinckney as legatee under his father’s will having been represented on the accounting of Austin’s administrator by Turner as the legal representative of the estate of Abram D. Pinckney, and , he having been made a party to the proceeding for the judicial settlement of the accounts of Turner as administrator with the will annexed of Abram D. Pinckney, he was bound by the decrees of the Surrogate’s Court of Fulton county rendered in such proceedings, as to all matters over which that court had jurisdiction;
    That it was, therefore, error for the court, in the proceedings for the judicial settlement of the accounts of Turner as guardian, to resettle matters involved in and covered by the account of .Austin’s administrator, or of Turner as administrator with the will annexed of Abram D. Pinckney;
    That; while the surrogate of Fulton county had jurisdiction on the acounting by Austin’s administrator to settle Austin’s accounts as guardian of Earl M. Pinckney, the latter not having been a party to such proceeding, was not concluded thereby in his capacity as a ward.
    Williams, J., dissented.
    Appeal by Watson Turner, by Willard Turner, bis committee, as guardian of the property of Earl M. Pinckney, a minor, from portions of a decree of the Surrogate’s Court of the county of Herkimer, entered in said Surrogate’s Court on the 10th day of April, 1901, judicially settling the accounts of said guardian.
    
      Eugene E. Sheldon, for the appellant.
    
      George W. Ward, for the respondent.
   Nash, J.:

This is an appeal from the decree of judicial settlement of the accounts of Watson Turner, as the guardian of the property his ward, Earl M. Pinckney, who had attained his majority.

The property of the minor consisted of real and personal estate, devised and bequeathed to him by his father, Abram D. Pinckney.

Abram D. Pinckney died July 14, 1888, a resident of Fulton county. His will was admitted to probate in the Surrogate’s Court of Fulton county.. Letters testamentary thereon were issued to-Jeremiah S. Austin, sole executor named in the will, and he was appointed by the same court guardian of the property of Earl M. Pinckney, then a minor ten years of age. January 27, 1891, Jeremiah S. Austin was killed, not having accounted for his trust either as executor or guardian. On the 23d of September, 1891, Earl M. Pinckney having become a resident of Herkimer county, his mother was, on her petition, appointed guardian of his person, and Turner guardian of his property, by the Surrogate’s Court of Herkimer county. On October 27, 1891, Turner was appointed, by the Surrogate’s Court of Fulton County, administrator with the will annexed of Pinckney. After the death of Jeremiah S. Austin, James B. Austin was appointed his administrator by the Surrogate’s Court of Fulton county, and upon the petition of Turner as administrator of Pinckney, filed February 10,1892, he was cited to account, before the Surrogate’s Court of Fulton county, for the property which came into the hands of Jeremiah S. Austin as executor of the will of Pinckney, unaccounted for and unadministered at the death of Austin. In the month of December, prior to the filing of his petition, Turner and Austin met for the purpose of examining the accounts of Austin as administrator and guardian, and Turner, with the advice and assistance of counsel, spent two days examining the accounts and vouchers of Jeremiah S. Austin as executor of Pinckney and as guardian of Earl M. Pinckney, and upon such accounting the total receipts of Jeremiah S. Austin as executor and guardian were ascertained to be $3,633.43, of which as guardian he was charged with $650, three years’ rent of his ward’s real estate, and his disbursements were ascertained to be $2,415, of which two sums were allowed to the deceased executor as having been paid out as guardian as follows: $35 to the mother for the care of the minor, and $20 for his care while at the executor’s; subsequently, after the return of the citation to account served upon Austin, the-parties went before the surrogate and reviewed their whole proceeding, and thereupon reduced to writing their settlement of the accounts of Jeremiah S. Austin as executor of the will of Pinckney and as guardian of his ward, and the same was signed and acknowledged by Turner before- the surrogate and filed as an accounting and settlement of the accounts of Jeremiah S. Austin as such executor and guardian, except as to some items upon which they had been Unable to agree and which in their writing were excepted from such settlement and as to which proof was taken by the surrogate; after which, and on May 2, 1892, the Surrogate’s Court made its decree settling the accounts of James B. Austin, as administrator, etc., of Jeremiah S. Austin, deceased, for his acts as executor of the will of Abram D. Pinckney, deceased, in which decree it was recited that on March 7, 1892, the parties appeared with their respective counsel and in open court proceeded to settle the matter of the trust of the deceased executor, which proceeding was continued until the eighth of March, and on that day, the said Austin and Turner agreeing in the main upon said accounting, a statement and stipulation in settlement and release were made and filed which remained of record in the surrogate’s office as part of the proceeding to which the court expressly referred and made the same a part of its decree, and thereupon expressly found as matter of fact that on the 8th day of March, 1892, James B. Austin did account to Turner as administrator of Pinckney for all the acts and administration of the deceased executor, and had turned over to Turner all the property of the estate of Pinckney with which the estate of the deceased executor was chargeable except certain items of the decree mentioned with which it was claimed by-Turner that Austin as administrator was liable, and the proceeding having been adjourned to that day, May second, and the surrogate having heard the testimony and the arguments of the parties and their respective counsel, it was adjudged and agreed by the court that Austin as administrator had fully accounted for the administration of the deceased executor for the trust committed to his care as executor of the will of Pinckney to Watson Turner as administrator with the will annexed of Pinckney, excepting as to the sums determined by the surrogate, and that upon filing proof of payment thereof the estate of Jeremiah S. Austin be discharged from all further liability.

Thereafter Turner had a judicial settlement of his accounts as administrator with the will annexed of Pinckney in the Surrogate’s Court of Fulton county, in which this respondent was made a party duly served with citation, and jurisdiction acquired by the appointment of a special guardian who appeared for him on such judicial settlement; and the decree of the court was made thereon, adjudging that said Watson Turner had fully accounted for all moneys and property of the estate of Abram D. Pinckney, deceased, and that he pay over the amount adjudged in his hands as such administrator to the guardian of Earl M. Pinckney.

These decrees of the Surrogate’s Court of Fulton county were binding and conclusive upon the respondent, whose interest as legatee was represented on the accounting of Austin by Turner as the legal representative of the estate of Abram D. Pinckney, and who was made a party to the judicial settlement of the accounts of Turner as administrator of the estate of Abram D. Pinckney, as to all matters over which the Surrogate’s Court of Fulton county had jurisdiction, and which were included in the accounts thus judicially settled, expressly made so by the provisions of the Code of Civil Procedure. A judicial settlement of the account of an administrator or executor is conclusive evidence against all the parties who were duly cited or appeared, and all persons deriving title from any of' them, of the facts stated in the subdivisions of section 2742, among which are items allowed to the accounting party for money paid to creditors, for necessary expenses, and for his services; that the accounting party has been charged with all the interest for money received by him, and embraced in the account, for which he is legally accountable ; that the money charged to the accounting party as collected is all that was collectible on the debts stated in the account, and that the allowances made to the accounting party for the decrease, and the charges against him for the increase in the value of property were correctly made. These practically cover the entire administration of an estate.

It was, therefore, error for the court below to take proof on the accounting of Turner as guardian, and resettle matters involved in and covered by the account of Austin as administrator of the deceased executor, or of Turner as administrator of the estate of Pinckney.

Jt was also error for the court below to take proof and charge the appellant with the value of the machinery as personal property sold by order of the County Court of Fulton county as fixtures in the proceeding to sell the infant’s real estate, That question was settled and adjudged by the order of that court in that proceeding and, therefore, conclusive.

While the Surrogate’s Court of Fulton county had jurisdiction to settle the accounts.of Jeremiah S. Austin ¡as guardian of the respondent, and his accounts as guardian were included in the voluntary settlement had by and between his administrator and the appellant, and in the decree of the surrogate, still the respondent not being made a party to the accounting before the surrogate, he was not concluded. But the only item with which Jeremiah S. Austin appears to have been chargeable as guardian was the rent of the infant’s real estate to the time of that accounting, a period of three years, for which Austin, as administrator charged himself in his account with the sum of $650. The court below upon the proofs finds the value of the infant’s real estate for that period the same as allowed by Austin in his accounting with the respondent. The only items of credit allowed to Jeremiah S. Austin as guardian were $335 paid to the mother for the support of the respondent and $20 for his care by the deceased executor, both of which upon the proofs should be allowed.

The greater part by far of the record on this appeal is made up of the proceedings and evidence taken on this accounting regarding matters as to which the surrogate was concluded by. the decree of the Surrogate’s Court and the order and judgment of the County Court of Fulton county, and, therefore, the appellant should not be charged with the expenses thereof, but should be allowed commissions, costs and taxable disbursements of the accounting which has been had and his costs of this appeal payable out of the estate.

The proceeding should, therefore, be remitted and the court below directed to modify the decree entered therein, and, in place of the matters with which the appellant is now charged as guardian of the respondent, he should be charged with the amount decreed to be paid-by the decree of the Fulton County Surrogate’s Court.

May 14,1894.................................... $1,360 27

Rents of real estate received by James B. Austin, as follows: December 1,1892...................... 175 00

December 1, 1893.................................. 150 00

December 1, 1894................................. 100 00

Received on sale of infant’s real estate and deposited in Johnstown Bank................... 650 00

Together with accumulated interest thereon since January 1, 1898, in accordance with the.rules of the bank relating to interest.

Also with the further sum received on said sale of..... 15 00

And credited with his disbursements as guardian not included in his accounting with Austin, and charged interest with annual, rests except as to said deposit in the'Johnstown Bank and allowed commissions. as guardian.

And as so modified that the decree be entered, without further costs to either party.

Adams, P. J., McLennan and Bjscook, JJ., concurred; Williams, J., dissented on the ground that the decree should be reversed and a new trial ordered, with costs to the appellant to abide event.

Williams, J.:

. I think there should be a reversal and new trial ordered, with costs to the appellant to abide event:

Decree reversed and-proceedings remitted to Surrogate’s Court, with directions to proceed and enter decree in accordance with the views expressed in the opinion of this court, with costs of this appeal to the appellant, payable out of the estate.  