
    Seymour Lowman, as Administrator, etc., Resp’t, v. Elmira, Cortland and Northern Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 1895.)
    
    1. Executors—Appointment.
    Where all the jurisdictional facts appear in the proceedings for the appointment of an administrator, the cuestión that his bond is insufficient cannot be raised collaterally. ■ =
    
      2. Same—Limitation of power.
    In a case under § 2664 of the Code, the payment of the judgment by the judgment debtor to the administrator does not discharge him therefrom, though the latter was also the general guardian of the next of kin of the intestate.
    3. Same—General guardian.
    An administrator has no right to pay a distributive share to the general guardian'of an infant, unless directed by the surrogate’s court.
    4. Same.
    The fact that the distributive share arises from the proceeds of a special action furnishes no exception to this rule.
    Appeal from a judgment in favor of plaintiff.
    
      Frederick Collin, for app’lt; Baldwin & Baldwin, for resp’t.
   Merwin, J.

On the 24th October, 1885, Charles Gr. Judd, then being in the employ of the defendant as a brakeman, was killed while in the performance of his duties, and died intestate, leaving, him surviving, as his only heir and next of kin, a daughter, Emily B. Judd, an infant, and leaving no widow. On the 10th November, 1885, Hurd B. Judd, of Pittston, in the state of Pennsylvania, was appointed general guardian of the said infant by the surrogate’s court of the county of Chemung. This appointment was based on the petition of Hurd B. Judd, which stated, among other things, that he resided at Pittston, and was the uncle of the minor; that the minor was eight years old, and resided in the city of Elmira, and had no property, real or personal, with the exception of $17 due to her deceased father. On the 3d day of March, 1886, Hurd B. Judd, as general guardian of the minor, applied to the surrogate’s court of Chemung county for letters of administration upon the estate of Charles Gr. Judd. His verified petition stated, among other things, that Charles Gr. Judd, at the time of his death, resided in the city of Elmira, in said county; that he died intestate, and the value of his personal property did not exceed $50; that he came to his death by reason of injuries through the. negligence of this defendant, and that the petitioner desired to commence an action, as administrator, to enforce the liability given by the statute; that the petitioner had no property in this state, and no means of procuring bondsmen or giving a bond for the amount of the probable recovery. Thereupon, the surrogate’s court, upon the petitioner filing a bond in the sum of $300, issued letters to Hurd B. Judd. These letters, after reciting the death and residence of Charles Gr. Judd, and that a right of action is reserved and granted by special provision of law, and that Hurd B. Judd is entitled to the administration of said estate, and has filed the proper oath, proceeds as follows :

“ We do by these presents depute, constitute, and appoint you, the said Hurd B. Judd, administrator of, all and singular, the goods, chattels, and credits which were of the said Charles Gr. Judd, deceased. These letters, however, are limited to the prosecution of an action by said administrator to recover damages, by special provision of the law, by reason of the death of said Charles G. Judd, deceased; and you, the said Hurd B. Judd, as such administrator, are hereby restrained from a compromise of any such actian, and the enforcement of any judgment recovered in any such action, until the further order of the surrogate of the said county of Chemung. Granting, by these presents, unto said administrator, full power to administer upon the estate of said deceased, and to do and perform any duties and acts relating thereto, which by the laws- of this state are required of administrators appointed by the surrogate, and the performance of which, in the administration of said estate, may be necessary for the due, faithful, and proper administration thereof. Subject, however, to the conditions, limitations, and restrictions hereinbefore mentioned.”

Thereafter an action was brought in the supreme court against the defendant, in the name of Hurd B. Judd, as such administrator, upon the cause of action referred to in the petition and letters, and Jacob Schwartz was the plaintiff’s attorney therein. It was brought to trial in October, 1886, and a verdict rendered in favor of the plaintiff therein for $4,000; and upon this, judgment was duly entered on the 29th October, 1886, for $4,349.31, damages and costs. On the 26th July, 188/; the defendant paid to said Schwartz the sum of $4,750 in settlement of the judgment, and also of another claim upon which a suit was pending in the supreme court, in favor of one Bogers, against the same company, to recover three or four thousand dollars, in which suit the said Schwartz was the attorney for the plaintiff Bogers. These two claims were settled in a lump amount, and no division made at the time, so that how much was for one or the other does not appear. At the time of this settlement the Bogers action was discontinued, and the satisfaction piece in controversy executed by Schwartz, as plaintiff’s attorney, and delivered to the defendant. On the 5th September, 1892, upon the petition of the minor, who had then arrived at the age of fourteen years, the plaintiff, Seymour Lowman, was duly appointed her general guardian, and immediately instituted proceedings in the surrogate’s court of Chemung county for the removal of Hurd B. Judd as administrator; and thereupon., after a hearing, and on the 24th October, 1892, an order was made removing Judd from the office of administrator, and revoking the letters issued to him, and directing that letters be issued to the plaintiff, Seymour Lowman, upon his giving the proper bond and qualifying. In pursuance of this order, letters were issued to plaintiff on November 1, 1892. It is not found how much of the moneys paid to the attorney reached the hands of the administrator, Judd. It is, however, found that he, as administrator or as guardian, has never accounted for any of such moneys, nor has the plaintiff ever received any part of the same. It was decided by the special term that the compromise and settlement of the judgment made by the attorney was made without right or authority, and that the plaintiff in that action had no right or authority to satisfy the judgment, or to receive pay therefor, and that the plaintiff in this action was entitled to a judgment vacating and setting aside the satisfaction piece, and restoring the judgment and the lien thereof. The defendant claims that the appointment of the plaintiff as administrator is invalid because no petition was filed, as provided by section 2664 of the Code, and because the bond which he gave was not twice the value of the personal property, including the recovery against the defendant.

All the facts authorizing and calling for the appointment of Lowman as administrator appeared in the proceedings in the surrogate’s court for the removal of Judd, and were before the court when it appointed the plaintiff. The bond was in the penalty of $4,000, and the proceedings showed that the recovery against the defendant was for $4,000, besides costs. The defendant cannot raise here the question that the plaintiff’s bond was insufficient. Sullivan v Tioga Railroad Co., 44 Hun, 304 ; 7 St. Rep. 627, and cases cited. The surrogate’s court had jurisdiction to grant the letters, and they are here conclusive. Code, § 2591; Kelley v. West, 80 N. Y. 145. We must, I think, assume that the letters to plaintiff are valid.

Assuming that the letters to Judd were without limitation, the attorney for the plaintiff in the judgment had no authority to compromise the judgment. Cox v N. Y. C. & H. R. Railroad Co., 63 N. Y. 419 ; Lewis v. Y/ooEruff, 15 How. Pr. 539. To avoid this situation, it is claimed by the defendant that the judgment must be deemed to have been paid in full. That fact, however, is not found, nor .is there any request to find it. The attorney for the defendant, who negotiated the settlement, testified that the full amount of the judgment was paid ; but he also testified that the two claims were settled in a lump amount, and that how much Schwartz received on the Judd judgment, and how much on the other'claim, he did not know, and that he did not know how Schwartz divided it in- his own mind, and that, as between them, there was no division made. Evidently, the statement of the witness that the full amount of the judgment was paid, was only the operation of the mind of the witness, and not a part of the agreement of settlement. If, on this subject, we were to assume anything, it would be, in support of the.decision appealed from, that there was'in fact a compromise of the judgment. We could not assume to the contrary for the purpose of revearsal. Equitable Co-Operative Foundry Co., v. Hersee, 103 N. Y. 25; 3 St. Rep. 100. This question, however, I do not consider very important; for, if the attorney had a right to receive any of the judgment, what he in fact did receive might be applicable on it, though he had no right to satisfy the judgment.

The important questions, therefore, are whether the defendant was protected in paying the judgment to the plaintiff therein, or his attorney, and, if not, whether the defendant can be afforded any protection by reason of the fact that Judd was at the time general guardian of the infant. By Code Civ. Proc. § 2667, as it was in 1886, now section 2664, it is provided as follows:

“But where a right of action is granted to an executor or administrator by special provision of law if it appears to be impracticable to give a bond sufficient to cover the probable amount to be" recovered, the surrogate may in his discretion accept modified security and issue letters limited to the prosecution of such action but restraining the executor or administrator from a compromise of the action and the enforcement of any judgment recovered therein until the further order of the surrogate on additional further satisfactory security.”

Under this provision the letters in question were issued, and the limitations appeared upon, their face, and also appeared in the records of the surrogate’s court. Very clearly, it was the purpose of the law to confer upon such an administrator only the right and power to prosecute the action for the purpose of obtaining a judgment, if he could, and so determine the right and liquidate the amount. He had no right to compromise the action, or collect the judgment. In the answer of the defendant in the action, the issuing of letters was denied. Presumptively, they were proved upon the trial, and the defendant would have knowledge of the limitation on their face. It is not found or proved in the present case that the defendant did not know of the limitations, or paid the money in good faith, although the attorney of the defendant who negotiated the settlement was a witness in the case. It should, 1 think, be held that, presumptively at least, the defendant was chargeable with notice of the limitations in.the letters, and that, therefore, it had no right to make the payment. The attorney for the administrator had no greater rights or power to receive the money than the client had.

The defendant further claims that the money, having been received by Judd as administrator, passed, by operation of law, to him as general guardian, and is now held by him as such. The principle is invoked that when a person acts in a dual capacity, and in one capacity receives money which should be transferred to and held by him in the other capacity, the law will presume that he has done his duty, and holds the money in the capacity in which he should hold it. Many cases are cited to the general proposition, and in most of them the question' arose in determining controversies between sureties for the party in his different capacities. None of the cases referred, to are in this state, except In re Brown, 72 Hun, 160; 55 St. Eep. 517. In that case one Brown was the general guardian of an infant who was a residuary legatee in a will of which Brown was executor^ On his accounting as executor, he credited himself, as executor, with certain funds ■as paid to himself as guardian, and filed receipts for the same for himself as guardian, and on the strength of these he was discharged from liability as executor. In fact, the payments had never been made. Upon an accounting by Brown as guardian, he charged himself with the same payments that he had been credited with as executor. The sureties on the bond of the guardian claimed that this should not be done, because, upon the settlement of the executor, the surrogate’s court omitted to decree that the guardian should give a special bond, as required by section 2746 of the Code, and that in default of this the payment to the guardian, though in pursuance of* a decree, was illegal. It was held that the guardian could not be heard to deny the right of the ward to a decree charging him the amount, and that the sureties were not in any better position than their principal. This ruling does not help us in the present case. The principle invoked by the defend ant does not apply to this case. Assuming that Judd, as administrator, had the fund in his hands, he had no right, as against the infant heir and next of kin, to transfer it to himself as- guardian. By section 1903 of the Code, it is provided that the damages in such case, when collected, “must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration,” but the plaintiff therein may deduct the expenses of the action, and his commissions, upon their allowance by the surrogate. The manner in which unbequeathed assets, after the payment of debts and expenses, shall be distributed, is provided for by other sections of the Code (section 2732 et seq.). By section 2746, it is provided that, when a distributive share is payable to an infant, the surrogate’s court may, among other things, direct it to be paid to the general guardian, upon his depositing with the surrogate, in his office, a bond of the-form and character there specified, but that, if no direction is made by the surrogate’s court as to its payment in some of the ways there described, it shall, by order of that court, be paid into said court, by payment to the county treasurer, to be managed by him as therein directed. Under the provisions of this section, an administrator has no right to pay a distributive share to a general guardian, unless directed by the surrogate’s court. It was so held under a similar provision of the Revised Statutes. Wilcox v. Smith, 26 Barb., 318, 336. See, also, Estate of Flagg, 6 Dem. 289 ; Redf. Sur. Prac. (5th ed.) 686. The .fact that the distributive share in this case arose from the proceeds of a special action furnishes no good reason for removing it from the operation of the general provision as to the manner of payment of a distributive share belonging to an infant.

It is suggested on the part of the defendant that a payment by the defendant to the general guardian would have been good, and that the payment here should be deemed to have been made to' the guardian. The damages in such a case are recoverable only by an executor or administrator, and the defendant would have no greater right to pay or distribute them than the administrator would. So that if the administrator, though" an unlimited one, had no right to pay the guardian without the order of the surrogate’s court, the defendant would have no better right. No question was made on the trial, or is here, about the costs that were included in the judgment. We must therefore assume that any equities the defendant may have in regard to them, as to the plaintiff-in the judgment or the. attorney, have been fully protected, or will be in any future proceeding on the judgment, as restored.

It follows that the judgment should be affirmed. Judgment affirmed, with costs.

All concur.  