
    (68 Hun, 114.)
    PRENTISS v. WEATHERLY et al.
    (Supreme Court, General Term, First Department.
    March 17, 1893.)
    1. Executors and Administrators—Action on Bond—Who May Sue.
    Code Civil Proc. § 2607, provides that an action may be maintained on an administrator’s bond, after an execution issued on a surrogate’s decree against the property of an administrator has been returned unsatisfied, by and in the name of the person in whose favor the decree is made. Held, that an action thereon may be maintained by the general guardian of an infant to whom the decree of the surrogate has directed the administrator to pay over the funds, and such action could not be maintained by a guardian ad litem, the decree not being in his favor.
    2. Same — Approval oe Bond.
    Where the body of the guardian’s bond is in the case on appeal, the fact that the record does not show that it was “approved by the surrogate,” as required by Code Civil Proc. § 2746, is not a ground for reversing a judgment in his favor, it appearing that the question was not raised at the trial, for, though the approval is not printed as a part of the record, that does not prove its nonexistence, and the original bond, being a record, can be received in evidence on appeal for the purpose of sustaining the judgment.
    S. Same—Action by Guardian.
    An action by a guardian on the bond of an administrator who has been removed is not within Code Civil Proc. § 2609, providing that where the letters of an administrator have been revoked, and no successor appointed, “any person aggrieved may, upon obtaining an order from the surrogate granting Mm leave so to do, maintain an action on the official bond of the executor or administrator in behalf of Mmself and all others interested,” and therefore permission of the surrogate to bring such action was not necessary.
    i. Same—Accounting after Removal.
    The estate having been fully administered, the surrogate could finally settle the accounts of the removed administrator without going through the needless formality of appointing a new administrator, and Code Civil Froc. § 2693, providing that, when the letters of all the administrators have been revoked, the surrogate must grant letters to one or more persons as their successors as if the former letters had not been issued, is not mandatory, as is shown by section 2609, providing who may bring an action on the bond of an administrator in case no successor is appointed.
    6. Guardian—Appointment—Citation to Former Guardian.
    Letters issued to a general guardian need not show on -~cir face that a citation was issued to the former general guardian, as the absence of such recital is not proof that the citation was not in fact issued and served.
    Appeal from special term, New York county.
    Action by George Lewis Prentiss, as general guardian,, etc., against John S. Weatherly and Ellen Bowden, executors, etc., to recover on an administrator’s bond. From a judgment in favor of plaintiff, entered on a verdict directed by the court, and from an order denying a motion for a new trial made on the minutes, defend- , ants appeal.
    Affirmed.
    August 18, 1885, William Carleton died intestate, leaving Marie Carleton, a daughter, aged five years February 4, 1885, Ms sole heir and next of kin. June 8, 1886, letters of administration on his estate were duly granted by the surrogate’s court of the city and county of New York to William T. Ward, who afterwards, with James M. Baldwin and William H. Bowden,' executed and filed the usual admimstrator’s bond. On the same date—June 8, 1886— said Ward was duly appointed by said surrogate’s court the general guardian of the estate of said Marie Carleton. Ward entered upon the discharge of Ms duties as administrator and as guardian, and continued until June 19, 1890, when he was removed from both positions by said court. On the 9th of March, 1891, George L. Prentiss, the plaintiff, was appointed by said court general guardian of the estate of said infant in the place and stead of Ward removed, and on the same day executed the usual guardian’s bond. No administrator has been appointed in the place of Ward, removed, of the estate of William Carleton. December 31, 1890, Ward filed in said court an account as administrator, by wMch it appears that he then had on hand $3,413.87 in cash belonging to the estate. This account was never judicially settled. March 23, 1891, Ward filed a final account as administrator in said court, showing that he had in his hands $3,503 in money belonging to the estate, wMch, on the 2d of July, 1891, was adjusted and settled by said court. Ward "was allowed $212.70 for commissions and counsel fees, and was directed to pay to a creditor $150 in satisfaction of a claim. These sums, deducted from $3,503, left $3,140.30 in his hands, which he was directed to pay over to George L. Prentiss, general guardian of the infant. Thereupon a judgment was docketed for the amount, on wliich an execution was issued in December, 1891, wMch was returned wholly unsatisfed. TMs action was brought on the administration bond against William T. Ward, the principal, (though not so described in the bond,) and against James M. Bald win and William H. Bowden, the sureties, (though they were not described as such in the bond,) to recover $3,140.30, wMch Ward, as administrator, was directed by the decree of the surrogate’s court to pay to the plaintiff. Bowden alone defended the action, wMch resulted in a judgment May 26, 1892. On July 8, 1892, Bowden died, and the action was subsequently continued against his executors by order of the court.
    
      Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    Benjamin Patterson, for appellants.
    George F. Bentley, for respondent.
   FOLLETT, J.

The learned counsel for the defendants insists that the plaintiff cannot maintain this action for three reasons: (1) That it cannot be brought by a general guardian, but should have been by a guardian ad litem; (2) that it should have been brought by a new administrator, appointed in the place of Ward, removed; (3) that leave to bring it has not been granted by the surrogate’s court.;

The answer to the first objection is that section 2607 of the Code of Civil Procedure provides that an action may be maintained on an administrator’s bond by and in the name of the person in whose favor the decree was made. The decree of the surrogate’s court directed the administrator to pay over to George L. Prentiss, general guardian of the estate of Marie Carleton, $3,140.30, upon Ms giving the security required by section 2746 of the Code. TMs brings the case witMn the section, wMch expressly authorizes a general guardian to maintain the action. The decree was not in favor of a guardian ad litem, and the action could not have been maintained by one. November 27, 1891, the plaintiff executed a bond pursuant to section 2746 and the decree, wMch perfected the plaintiff’s right to bring tMs action. The body of the bond is contained in the case, but the record does not show that it was “approved by the surrogate,” as required by the section last cited. The answer to tMs is that no such question was raised on the trial of the action. The bond, as printed, does not appear to have been acknowledged, but its admission in evidence was not objected to on tMs or any other ground. The fact that an acknowledgment and an approval are not printed as a part of the record does not prove their nonexistence. The original bond, being a record, can be received in evidence on tMs appeal for the purpose of sustaining the judgment. Wines v. Mayor, etc., 70 N. Y. 613.

There is nothing in the position that a new administrator should have been appointed, who should have brought the action. The decedent’s estate was finally settled, and there "was no occasion for the appointment of a new administrator. By the decree the liability of the administrator to tMs plaintiff was established, and Ms right of action was perfect.

Section 2609 of the Code provides that an action brought thereunder shall be by leave of the surrogate. That section does not relate to actions Eke the one at bar, but to actions brought “by any persons aggrieved, * * * in behalf of himself and all others interested.” The defendant urged on the trial that the surrogate’s decree was procured through the fraud and collusion of Ward, the administrator, and this plaintiff, and for that reason was not binding on the administrator’s sureties. Upon an examination of the record we are of the opinion that there is not sufficient evidence of collusion to have justified the submission of the question to the jury. The administrator filed two accounts,—the first, December 1, 1890, which showed an indebtedness to the estate of $3,413.87; the second account, upon which the decree was made, was filed in March, 1891, by which the administrator charged himself with $3,503. The difference—$89.13—is accounted for by the amount charged for counsel fee, which was stated in the first account as $500, and in the second account the item was stated and allowed at $410.87. There is no claim that the first account was not voluntary, and made by the administrator in entire good faith. The point that the surrogate could not finally settle the accounts of the removed administrator without appointing a new one is not well taken. Section 2693 was not intended to be mandatory, as is clearly shown by section 2609. When an estate has been fully administered, as in the case at bar, the surrogate’s court is not required to go through with the needless formality of appointing an administrator.

It is also urged that the appointment of the plaintiff as general guardian was illegal, because the letters do not show, on their face, that a citation was issued to the person (Ward) formerly appointed general guardian. The petition in the proceedings resulting in the appointment stated all the necessary facts, and prayed that a citation be issued to Ward, the late guardian, to show cause, etc. It was prepared in January, 1891, but the case does not show when it was filed. The plaintiff was appointed March 9, 1891, so that there was ample time for the service, and return of the citation. The mere fact that the issuing of a citation is not recited in the letters is not proof that a citation was not issued and served. A further answer to this point is that it was not taken on the trial below. If it had been, it might have been obviated by producing the citation. The judgment should be affirmed, with costs. All concur. 
      
      ode Civil Proc. § 2609, provides: “Where the letters of an executor or administrator have been so revoked, and no successor is appointed, any person aggrieved may, upon obtaining an order from the surrogate granting him leave so to do, maintain an action upon the official bond of the executor or administrator in behalf of himself and all others interested.”
     
      
      Code Civil Proc. § 2693, provides: “When all the executors or all the administrators to whom letters have been issued die or become incapable, as prescribed in section two thousand six hundred and ninety-two, or the letters are revoked as to all of them, the surrogate must grant letters of administration to one or more persons as their successors in like manner as if the former létters had not been issued.”
     