
    Matter of the Estate of Leroy Atwood, Deceased.
    (Surrogate’s Court—Chautauqua County,
    December, 1894.)
    The decedent left a widow, son, aged sixteen years, and a daughter, aged nine years, his only heirs and legatees. He owned property worth over $14,000, and appointed his widow and his brother, a non-resident of the state, executors, and appointed thereby Julian A. Clark, one of such executors, testamentary guardian of the person and property of his son, and his widow the testamentary guardian of the person and property of his daughter. He ordered, by the fifth clause of his will, that his executors should give each of his minor children a liberal education, the expense to be charged against the sJia/re of each, respectively, on the final settlement of his estate. There was expended in giving the son a liberal education during four years at Cornell University, $1,868.38, of which $542.73 was for his clothing and doctors’ bills while there. Letters-were also issued to the executor, Julian A. Clark, as guardian of the-person and property of the son. It is claimed by the learned counsel of said minor that, as general guardian, said Clark had no legal right to pay such sum of $542.73 for the boy’s education at Cornell University, but that the same should be paid out of the estate of the decedent, which would make each of the three legatees, including the widow, share equally in such expense. Held, that such sum of §542.73 was chargeable against the share of the son, the same as the remaining sum of §1,325.60 for his board, travelling expenses, etc., not disputed.
    Judicial settlemeút of accounts.
    
      O. D. Murray, for Lydia D. Atwood, executrix and legatee^ named in will as testamentary guardian of the person and estate of Helen Gr. Atwood, minor, and special guardian for said minor, and for Julian A. Clark, executor and guardian of Wm. Gr. Atwood.
    
      George Barker, for William Gr. Atwood, legatee.
   Sherman, S.

The decedent died November 24,1887. He made his will dated April 1, 1886, which was probated January 2, 1888.

The decedent left him surviving Lydia D. Atwood, widow, William Gr. Atwood, son, and Helen Gr. Atwood, daughter, his only heirs and legatees, and appointed Lydia D. Atwood executrix, and Julian A. Clark, of Bloomington, 111., executor. The decedent, at his death, owned property of the value of over $14,000.

The testator by such will gave to his widow, son and daughter, respectively, certain articles of personal property, such as household furniture, books, paintings, etc., particularly mentioned in the first, second, third and fourth clauses of such will.

By the fifth clause of his will he directed the residue of his , estate to be divided into three equal shares, giving one to Ms wife, Lydia D. Atwood, one to Ms infant son, William G-. Atwood, and the other share to Ms infant daughter Helen, with the provision that no division of that part of his estate should be made until his infant daughter Helen should arrive at the age of twenty-one years ; and further provided by the same clause that his wife and children should receive their support and maintenance from his estate until the final settlement and division thereof; and the said fifth clause further provided as follows:

“ My executors, for the purpose of providing both or either of my children with a liberal education, may appropriate such portion of the sha/re of the said children, respectively, as may, in the judgment of my executors, be proper and necessary for such purpose, charging to such child, respectively, the amount so used for such purpose in the final settlement and division of my estate.”

The said fifth clause also further provided that after his son William should arrive at the age of twenty-three years and •should desire to engage in business upon his own account and require money for such purpose, and that if it should be ■deemed feasible and proper for him, the said executors should •advance to him out of his share of the estate a sum not exceeding $2,000 for such purpose, and also that the proportion of the estate bequeathed to his wife, Lydia, should be received by her in lieu of all dower and thirds and interest in his estate.

The will also authorized the executors to sell the real estate and apply the proceeds thereof or invest same in other real estate, as they might deem best for the interests of all concerned.

By his will he appointed his wife, Lydia D. Atwood, testamentary guardian of the person and estate of his daughter Helen, and appointed his brother, Julian A. Clark, of Bloomington, 111., to be the testamentary guardian of the person and property of his son, William Q-. Atwood, on April 1, 1886, of the age of about sixteen years and his daughter then of the age of about nine years.

The will further provided that his said executor and executrix should neither of them, be required to give bonds for the performance in good faith of the trusts resposed in either of them by his said will.

Julian A. Clark was also appointed the guardian of the person and estate of said William G. Atwood by letters of guardianship issued by the surrogate of said county January 30, 1888, and made petition in due form for the judicial settlement of his account filed December 20, 1893, as such guardian, and the said Lydia D. Atwood on December 20, 1893, also presented a petition for the judicial settlement of her accounts as such executrix, upon both of which proceedings citations were duly issued and served upon all the said persons interested in said estate, both returnable before the surrogate on January 15, 1894, and both proceedings have since then been conducted and heard together. The only contested question in these proceedings relates to the construction to be given by the surrogate to that part of the fifth clause of the said will above cited relating to the provision therein authorizing the executors to provide for a liberal education to both or either of the two minor children and to appropriate such portion of the share of the said children, respectively, as might in the judgment of his executors be proper and necessary for such purpose, and charging to each child, respectively, the amount so used for such purpose in the final settlement and division of his estate.

It appeared in evidence and was not disputed that the executors in September, 1888, sent the said William G. Atwood to school at Cornell University, where he remained in college during four school years and graduated in June, 1892, and that they or said Julian A. Clark, as guardian of said William, paid the necessary expenses of his board, traveling expenses, clothing, university fees, laundry, sundries, books and stationery, doctors’ bills and dentist and oculist charges, in all amounting to $1,868.33.

Of the above sum of $1,868.33, $483.33 were paid for clothing during the said four years, and $59.40 for the services of doctors, occulist and dentist, and for medicine for said William G-. Atwood, he being under age, amounting to $542.13.

ÍTo objection was made on the hearing to such expenditures, but it was strenuously claimed by the learned counsel for the said William G-. Atwood that the said $542.13 should not be charged to him in such accounting and be taken out of his share of said estate on the final settlement, but that the same should have been paid by the executors out of the whole estate of the decedent, each of the three legatees paying an equal share thereof.

It appeared that no petition was made to the surrogate for the appointment of a testamentary guardian of William G. Atwood, minor, but an order was duly made and filed January 30, 1888, appointing said Clark the testamentary guardian of the person and estate of said minor, on which order and decree letters of guardianship were issued to said Clark, reciting that the said Clark had been legally nominated and chosen testamentary general guardian of said William, having taken the oath of office required by law, and stating as follows: “How, therefore, we do allow and appoint you, the said Julian A. Clark, to be the general guardian of the said William G-. Atwood, with such authority over his person and property, real and personal, as by law unto a general guardian appointed by the surrogate doth in anywise appertain, until he shall arrive at the age of 21 years, or until you shall be superseded according to law.”

Such letters were headed as follows: “ Testamentary letters of guardianship—minors over fourteen,” and were indorsed on the outside of said letters above the filing thereof, “Testamentary letters of guardianship, Julian A. Clark, guardian. Issued Jan. 30, 1888. D. Sherman, Surrogate.” And the same were duly filed and recorded of that date.

The issuing of letters testamentary, or of letters of guardianship, or of administration, or letters of testamentary guardianship, is not necessarily a judicial act; any clerk of the Surrogate’s Court can do it, when founded upon a proper order, signed and sealed by the surrogate, such as was done in this case. The order appoints the guardian, administrator, executor or testamentary guardian, and not the letters. Redf. Sur. Pr. 32/258 (5th ed.). See approved form for testamentary letters of guardianship, Redf. Sur. Pr. 1038,1039 ; Code Civ. Proc. § 2509, subd. 2.

The learned counsel for Julian A. Clark, executor and guardian of William Gr. Atwood, and for Lydia D. Atwood, widow and executrix, and as special guardian for said Helen Gr. Atwood, claimed that such sum of $542.73 should, under the fifth clause of said will, be charged to and taken out of the distributive share of said William on final settlement, the same as the other charges for his education, amounting to $1,325.60.

It appeared that the above sum of $1,868.38 was paid by the executors to Julian A. Clark after he received letters of guardianship as above stated, for the express purpose of his paying same for the education of said William Gr. Atwood; that said Clark sent same to him from his residence in Illinois from time to time in drafts, as he needed it, the said William using such funds in procuring a liberal education at the Cornell Hniversity, and keeping an itemized statement of such expenditures filed with the surrogate, to which statement no objections were taken.

I hold it immaterial whether such funds were paid by Clark as general guardian, or as testamentary guardian, or as executor of the will, so long as he was authorized by the will to pay same, and complied with the clear intentions of the testator as expressed in the fifth clause thereof in making such payments.

I direct decree that in the settlement of this estate the said sum of $542.73' be charged to the distributive share of the said William Gr. Atwood and taken from it, without commissions thereon to said Clark, he consenting thereto, and that the costs in these proceedings and on this accounting be paid out of the estate of the decedent to the respective parties, and that the said Clark be discharged as such guardian of said William Gr. Atwood, who is of full age.

Decreed accordingly.  