
    Mary A. Van Zandt, as General Guardian of Harry C. Van Zandt, Respondent, v. John H. Grant and E. Miller Cameron, Appellants.
    
      Accounting by the administrator of a deceased general gua/rdian—wheti a suit lies against the sureties on the guardian’s bond — his successor may sue — bond required of such successor — objection that the plaintiff is not the- real party in interest does not question Ms legal capacity to sue
    
    Where, on an accounting by the administrator of the estate of a deceased general guardian of an infant, a decree is rendered adjudging that the "deceased guardian was chargeable withacertain sum, itisnot necessary that all remedies against the administrator by. execution or contempt proceedings shall be first exhausted before recourse may be had to the liability of the sureties on the guardian’s bond, as by section 2606 of the Code of Civil Procedure it is provided that “ With respect to the liability of the sureties in, and for . the purpose of maintaining an action upon, the decedent’s official bond, a decree against his executor or administrator, rendered upon such an accounting, has the same effect as if an execution issued upon a surrogate’s decree.. against the property of decedent had been returned unsatisfied during decedent’s lifetime.”
    
      An action to enforce the liability of the sureties on the deceased guardian’s bond may be maintained by the latter’s successor.
    Such successor should be required to give a bond in an amount at least twice the value of any property in his hands added to the amount which the administrator is adjudged to pay over to him.
    An allegation contained' in the answer interposed in such an action, that the plaintiff is not the real party in interest, does not raise the objection that he has not legal capacity to sue.
    
      Qticeve, whether such an action can be maintained by a guardian ad Utem of the infant.
    Appeal by. the defendants, John II. Grant and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of March, 1901, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.
    
      Edward W. S. Johnston, for the appellants.
    
      Melvin G. Palliser, for the respondent.
   Laughlin, J.:

This action was brought to enforce the liability of the sureties on a guardian’s bond, and the issues were tried before the court, a jury trial having been waived. On the 7th day of July, 1892, Katie Jay Grant was duly appointed by the surrogate of the county of New York general guardian of the person and property of Harry 0. Van Zandt, an infant then under fourteen years of age, and she duly qualified by taking the oath of office as required by law and by filing an undertaking in the penal sum of $8,000, with the appellants as sureties, in the form and conditioned as prescribed in sections 2830 and 2831 of the Code of Civil Procedure. The. guardian entered upon the ¡performance of her duties and continued to perform the same until her death, which occurred on the 13th day of April, 1897. Her husband was subsequently appointed administrator of her estate by the Surrogate’s Court of Sullivan county. Mary A. Van Zandt was duly appointed general guardian of the person and property of the infant on the 13th day of May, 1898, and as such she duly instituted a proceeding befor e the surrogate of the county of New York to require an accounting by the administrator of the estate of the former guardian for the moneys and property of the infant which came into the hands of his decedent as such guardian. An accounting was duly had before the surrogate, and on the 19th day of June, 1900, a decree was duly made by the Surrogate’s Court of the county of New York adjudging that the balance for which the former guardian was liable as such was the sum of $2,874.65, together with interest thereon from the 22d day of December, 1899, and ordering and directing that said balance, together with the sum of $190.10,. the costs of the accounting, be paid by said administrator to said Mary A. Van Zandt as such general guardian. A copy of this decree, together with notice of entry thereof, was duly served on the administrator on the 25th day of June, 1900, and he has failed to comply therewith. This action was subsequently brought on said decree tereco ver of the sureties on the official bond of the former guardian the amount thus found due and owing from the guardian to the infant, and the costs of the accounting as fixed and allowed by the decree. A recovery has been had for the entire amount, together with costs and an extra allowance of five percentum.

The appellants contend that the decree of the surrogate shows that the funds, to recover for which this action was brought, came into the hands of the administrator of the deceased guardian, and it is, therefore, improper to proceed against her sureties. The administrator appealed from the decree of the surrogate to this court, where the decree was affirmed - (Matter of Grant, 56 App. Div. 176), and from the judgment of affirmance to the Court of Appeals, Where it was also affirmed. (166 N. Y. 640). The record on that appeal shows that the decree could not have been intended as a finding that the property came into the hands of the administrator, for all the evidence on the accounting proceeding, tending to show what money or property came into the hands of the administrator was excluded. But if we are not at liberty to consider that record, it not having been introduced in evidence in this case, a careful examination of the decree in the light of the provisions of the Code and the decisions of the Courts fails to show that it was intended to have any other effect than a determination of the amount due the trust estate from the former guardian. (Code Civ. Proc. §§ 2552, 2606; Matter of Fithian, 44 Hun, 457; Perkins v. Stimmel, 114 N. Y. 359, 370.) We do not agree with the contention of the appellants that all remedies against the administrator by execution or contempt proceedings must be first exhausted before recourse may be had to the liability of the sureties on the guardian’s bond. By the express terms of sections 2605 and 2606 of the Code of Civil Procedure, where a guardian dies, the Surrogate’s Court is authorized, upon the petition of his successor, to compel his executor or administrator to account. The last-mentioned section also authorizes a voluntary accounting by the executor or administrator of a deceased guardian, and it then provides as follows: With respect to the liability of the sureties in and for the purpose of maintaining an action upon the decedent’s official bond, a decree against his executor or administrator, rendered upon such an accounting, has the same effect as if an execution issued upon a surrogate’s decree against the property of decedent had been returned unsatisfied during decedent’s lifetime.” As we construe the section, the provision of law quoted relates to any accounting had under that section, whether voluntary or involuntary. It would seem to follow that the issuing of an execution is not a condition precedent to the commencement of an action against the sureties upon the official bond of the deceased guardian. The effect of the decree is to authorize an action thereon forthwith against the sureties on the official bond of the decedent, the same as if he were living, and an execution against his property upon the surrogate’s decree had been returned unsatisfied, and its purpose was to take such a case out of the provisions of section 2607 of the Code of Civil Procedure, which authorizes a suit upon the official bond only after a return of execution wholly or partly unsatisfied. (Allen v. Kelly, 55 App. Div. 454.) It does not appear that the sureties were parties to the accounting proceeding, but the decree is, nevertheless, binding upon them. (Douglass v. Ferris, 138 N. 192; Altman v. Hofeller, 152 id. 498; Martin v. Hann, 32 App. Div. 602 ; Allen v. Kelly, supra.)

The appellants also contend that the action can only be maintained by a guardian ad litem of the infant. This is in effect a claim that the plaintiff has no legal capacity to sue. If this be an insuperable objection, it appeared on the face of the complaint and was waived by the defendants’ failure to demur thereto. (Code Civ. Proc. §§ 488, 499; Maxwell v. Pratt, 24 Hun, 448 ; Sullivan v. N. Y. & R. Cement Co., 119 N. Y. 348 ; Nanz v. Oakley, 120 id. 84; 122 id. 631; Perkins v. Stimmel, 114 id. 359, 365, 368, 369.) The objection was not taken by demurrer, nor is it specifically raised by the answer. It is alleged in the answer that the plaintiff is not the real party in interest. The distinction between not having legal capacity to sue and not being the real party in interest is obvious. The plaintiff has a personal interest in the matter, at least to the extent of his fees, and there is no claim of a defect of'parties properly presented.

Section 2608 of the Code of Civil Procedure provides that “ where letters have been revoked by a decree of the Surrogate’s Court, the successor of the executor, administrator or guardian whose letters are so revoked may maintain an action upon his predecessor’s official bond, in which he may recover any money or the full value of any other property received by the principal in the bond and ■ not duly administered by him; and to the full extent of any injury sustained by the estate of the decedent or of the infant, as the case may be, by any act or omission of the principal.” By section 2606 of the Code of Civil Procedure the same jurisdiction is given to the Surrogate’s Court to require an accounting by the executor or administrator of a deceased guardian “ which it would have against the decedent if his letters have been revoked.” The decree expressly directing the payment of the money to the general guardian was made on an accounting had under this section. ■ In making the decree, the court followed the practice prescribed in section 2608, and it has been determined that where the decree directs payment to be made to a general guardian he is the proper person to maintain an action under section 2607 (Prentiss v. Weatherly, 68 Hun, 114; 144 N. Y. 707); and although these sections may not be strictly apjdicable, we think the decree in that regard is valid.

The plaintiff in her representative capacity is, therefore, clearly the real party in interest. Ye think the action may be maintained in the form in which it is brought, and it is unnecessary to decide whether an action could have been maintained by a guardian ad litem, or whether that would have been the better practice —as to which question the. authorities are not altogether harmonious. (Prentiss v. Weatherly, 68 Hun, 114; 144 N. Y. 707; Perkins v. Stimmel, 114 id. 359 ; Segelken v. Meyer, 94 id. 473.)

It is not shovm what property came into the hands of the plaintiff as such general guardian,- but it appears-that the penalty of the bond given by the plaintiff as general guardian is only $2,000, and the amount of the recovery is largely in excess of that sum. That is a question which does not concern the defendants, as payment by them to the plaintiff will discharge their liability. The surrogate, however, should have required a new or additional bond as a condition of authorizing the general guardian to receive the funds ; but this court may correct that omission.

The judgment should be modified by providing that, before receiving the money or collecting the judgment, the general guardian shall file with the surrogate, in lien of her existing bond, either a new bond as prescribed in said section, in a penalty which the surrogate shall determine, to be at least twice the amount of any property now in her hands as such general guardian and the amount of the judgment herein as well, or an additional bond, which, together with the original bond, shall be security therefor; and as so modified affirmed, with costs.

Patterson, Ingraham and Hatch, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to the respondent.  