
    In the Matter of the Petition of William C. Camp for an Accounting by Nelson Cross, as Executor, etc., of Calvin B. Camp, Deceased, General Guardian of Petitioner, etc. William C. Camp, Appellant and Respondent; Nelson Cross, as Executor, etc., of Calvin B. Camp, Deceased, Respondent and Appellant.
    
      Surrogate’s Oourt^-jurisdiction to compel the executor of a tenant by the. cwtesy,who has been appointed guardian of his children, to account for an award which he receipted for as guardian—allowance for repairs — prima facie proof of credits in famor of a guardian. .
    "Where a husband, who is a tenant by the curtesy of his wife’s estate, subsequently procures his own appointment as guardian of his children, and thereafter receipts as such, guardian for the amount of an award made in proceedings taken by a city to' condemn real property which had belonged to his • deceased wife, the Surrogate’s Court, by virtue of his relation of guardian, has sufficient jurisdiction to require his executor to account for the award thus received by the husband.'
    Where moneys expended by a husband and tenant by the curtesy in repairs upon a house of which his wife died seized, necessitated by the taking of a part of the wife’s estate under condemnation proceedings, have been raised by mortgaging other lands of which the wife died seized, such moneys cannot be allowed as a deduction from the amount of the award received by, and chargeable against the estate of, the husband.
    Items of credit.in the husband’s favor appearing in an account previously rendered by him-of the. amount received from such award, which an heir at law of his wife puts in evidence upon such accounting by the husband’s executor, may be allowed by the surrogate as prima facie proved, although they are not supported by vouchers, as required by the statute.
    Appeal by William G. Camp from so much of a decree of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 19th day of December, 1896, as modifies the report of a referee.
    Also, an appeal by Kelson Cross, as executor’, etc., of Calvin B. Camp, deceased, from the said decree, except from so much thereof as modifies the referee’s report.
    
      W. O. Beecher, for the executor.
    
      Frederic B. Jennings, for the petitioner.
   Bradley, J.:

The petitioner, William C. Camp, was one of four children surviving their mother, Mary E. Camp, who died in October, 1866, seized in fee of the real property hereinafter referred to. She was also survived by Calvin B. Camp, her husband and the father of those children. Prior to her death proceedings were instituted for the condemnation of certain of her real estate, by . the city of Brooklyn, for a public park. After her death they resulted in an award of $26,000. The children were then infants; and after letters of -guardianship were issued to the father, and on February 18, 1868, the amount of the award was .paid to him by the comptroller of the city and receipted by him as such guardian. He made no investment of the fund, but appropriated the money to his own use in his business, which, for the want of funds, he was finally obliged to discontinue. He died in January, 1893, leaving a will, which was admitted to probate in May following, and letters testamentary were issued to the appellant, Kelson Cross.

This proceeding was instituted in January, 1895, to require the executor to account for the proceedings of his testator as guardian of the petitioner. By his answer the executor, upon information and belief, denied that his testator received, as guardian of the petitioner, any money from the city of Brooklyn, and alleged that he was entitled to the use of such money as tenant by the curtesy, and that the Surrogate’s Court had no jurisdiction in the matter. After being directed to do so, the executor filed his account, to- the effect that no property -had come into his hands as such representative of- Calvin B. Camp, deceased, as the general guardian of the petitioner, and that he had paid out nothing on the account of his testator as such guardian. Exceptions of the petitioner were filed to the account, and a referee was appointed, before whom the hearing was had, and he determined that the petitioner was entitled to.a decree against the' executor for $6,500 and interest from the time of the death of his testator. When the matter' came before the Surrogate’s Court upon the report of the referee, that court declined to adopt the report entire, but determined that ■ the executor was entitled to a credit of one-quarter of $1,600 -for expenses' incurred by his testator ■ in the litigation attending the condemnation proceedings as charged for in the account filed by the testator in March, 1889, and $1,500 paid by the testator in settlement of a claim against the petitioner, and as so modified' the referee’s report was confirmed and a decree entered accordingly.

It is asserted on the part of the executor that the money did not come into the hands of Camp as guardian, and that he neither received or held it as such, and that,'therefore, there was no jurisdiction in the Surrogate’s Court to make the decree.

It is true that the money represented the land condemned by the city and that the testator as tenant by the curtesy was entitled to the income of it during his life. If there had been nothing to otherwise characterize his relation to the fund when he took possession of it there would be much force in the proposition urged by the counsel for the executor, that the nature of the interest of the children was that of an estate in remainder, and that their remedy for recovery -or an accounting was available only in another forum. But his right to take'the actual possession of the corpus of the fund, as.' tenant by the- curtesy without security, was not unqualified. (Matter of Blauvelt, 131 N. Y. 249.) And it may be assumed that to' enable him to have the custody of it he obtained his appointment of general guardian for the infant children, qualified as such and did what was requisite to - permit him to act in that relation. Thus equipped, he received .the money and receipted for it as guardian. While this did not impair or qualify his status as tenant by the curtesy, so. far as related .to the use or income of the- fund during his life, it did superadd the relation of guardian recognizable for the purpose of an accounting on the termination of his tenancy. This was the apparent view of the Court of Appeals on the review of a former proceeding, which was held to be premature. (In re Camp, 126 N. Y. 377.) And such was the view and determination of the General Term in this proceeding. (91 Hun, 204.) The conclusion follows that the matter was within the jurisdiction of the Surrogate’s Court.

The remaining question has relation to the amount 'which the petitioner was entitled to have awarded to him by the decree. It is insisted that the court erred in treating the entire $26,000 as representing the value of proceeds of the land, because a portion of the amount was awarded for injury to the house, a section of which was included in the premises taken, requiring as the consequence the remodeling or reconstruction of the house. It is, therefore, urged that as the duty ordinarily rests upon a life tenant to maintain and keep in repair premises in which he has such an estate, and as the requisite expense to repair the injury to the house incurred by him may be deemed to have been included in the award, he should not be required to account for that much of the amount awarded.

The answer to this contention is in the fact that the life tenant did not treat the repair or reconstruction thus required, and which he caused to be made of the house, as within the repairs chargeable to him as such tenant, but to raise the money for that purpose he caused a. mortgage to be made upon land of which his wife died seized, and upon that security the money was borrowed. So far as appears, he may be deemed to have regarded the expense of that improvement as chargeable to the estate in remainder. The entire amount of the award was properly treated as representing the land taken by the city.

It is contended by the learned counsel for the petitioner that the court erred in allowing the credits resulting in the modification of the report of the referee, for the reason that they were not supported by vouchers as required by the statute. (Code Civ. Proc. § 2729.). This would clearly have been so if the proof of them had been dependent upon evidence offered by the executor. But the petitioner put in evidence an account filed by the testator in the prior proceeding in which was included not only the receipt by him of ■ the $26,000, hut also those, credits so allowed by the surrogate. It does not appear to have, been any part of the account of the executor in this matter. This was the statement of the testator filed some . years before;. it was independent of this proceeding, and was put in evidéñce without qualification. Although the question may not be ■ entirely free from doubt, we think that, under .such circumstances, ■ the statement so introduced on the part of the petitioner was evidence of those items of credits. • The .sufficiency of proof to sup-" port the allowance of those credits does not rest upon estoppel. The introduction by the petitioner of the statement of the account so rendered by the testator in the former proceeding, did'not give conclusive effect to the evidence of those credits. They were subject to attack by counteracting evidence on the part of the petitioner. (Becker v. Koch, 104 N. Y. 394; Prest., etc., of Manhattan Co. v. Phillips, 109 id. 383.), None was introduced. It is not seen that the surrogate treated the evidence in that respect as conclusive, but it may be: assumed that lie deemed it as sufficient to establish those, credits. The report of the referee was in some, sense advisory, in character.. The evidence, also the facts and conclusions of law found, by him ■were, subject to the reconsideration of the surrogate, with a view to his confirmation or modification of the report. (Code Civ. Proc. § 2546.) In the view taken of the case, there is no occasion to further modify, the findings of the referee or to disturb the conclusion of the surrogate.

The decree should be affirmed.

. . All concurred, ■ ■ ■

Decree of the Surrogate’s, Court affirmed, without costs. to either . party, and proceedings remitted to that court.  