
    In re Lottie M. Woodworth, deceased.
    
      (Surrogates Court, Cattaraugus County,
    
    
      Filed July 24, 1886.
    
    1. Executors and administrators—Accounting—Proceeds oe infants real estate.
    The proceeds of the sale of an infants lands are deemed and treated as real estate, and descend to his or her heir’s at law in case of his or her death intestate during minority,
    2 Same—Payment by administrator of funds impressed with the
    CHARACTER OF REALTY.
    Where upon the accounting of an administrator, objection was made to certain payments by him to the mother of his intestate, and on her account, such intestate at the time of her death being an infant, and the funds fropi which these payments were made, being the proceeds of the sale of the infant’s lands Held, that, such proceeds are to be deemed and treated as real property and to descend to the heirs at law. That the mother was entitled to a life interest in the real estate of the infant, and the payments to her were valid. That at least the petitioner could not be made to account for the funds as administrator, they being impressed with the character of realty.
    3. Same—Jurisdiction of Surrogates court.
    The surrogates court has no jurisdiction to determine the rights of the parties to these funds.
    4- Same—Estoppel.
    The administrator by inventorying these funds as personal estate is not estopped from showing their character.
    5. Same—Liability for interest.
    An administrator is liable for interest upon funds which come into his hands as personalty, and which might with reasonable dilligence have been invested.
    
      ' E. E. & G. W. Harding, for Orson Randall, adm’r. ; C. D. Vanearnan, for Rosaline M. Randall, contestant.
   Spring, S.

The petitioner in this proceeding was appointed administrator of intestate in the year 1810. At the time of her death she was a minor leaving her surviving no child, husband or father, but a mother and three sisters. The mother has since died.

' Some time prior to the death of the intestate, certain real estate, of which she was seized and which was situate ■in Wyoming county, was sold in proceedings had therefor and the proceeds of sale, amounting to over six hundred dollars, were paid to the treasurer of that county pursuant to the order of the county judge. After her death the administrator, supposing this money was personal property, of which he was the proper custodian, obtained an order from the county judge directing the treasurer to pay this money to him, the administrator, which was accordingly done.

■ Five hundred and fifty dollars of this was subsequently ■ paid to the mother of decendent by the administrator, and later fifty dollars was paid to liquidate the funeral expenses of the mother, upon her death.

The payments are objected to by the contestant and the main controversy now arises as to the character of this .money so paid by the administrator, and if “impressed with real uses ” when received by Mm, what effect his .action had in inventorying and treating it as personal property.

If the purchase price of this real estate was the same as the land itself, the statute of descent would compel a partition or division of the fund among the heirs at law, and it would go to the mother for life, and upon her decease to the sisters. Vol. 2, part 2, chap. 2, § 6, Revised Statutes (Banks & Brothers [6th ed.]), 1133; Wheeler v. Clutterbuck, 52 N. Y., 67, 72.

In that event the mother, by virtue of her life interest therein, would be entitled to the possession of this money and the payments made to her by the administrator would be valid. At least he could not be made to account for this money as administrator, for in that capacity he is only chargeable with the personal effects of deceased. Shumway v. Cooper, 16 Barb., 556.

If, however, this money was personal property, it would be distributed to the mother and sisters equally, according to the statute of distribution. Yol. 3, part 2, title 3, .chap. 6, art 3, § 90, Revised Statutes (Banks & Brothers [6th ed.]), 105.

And in that case the payments made to the mother would be excessive and the administrator would be liable., to the amount of such over payments. Adair v. Brimmer, 74 N. Y., 539, see 558.

So that it is esential to a proper disposition of this matter to determine whether this money was descendible to the heirs at law like real estate or distributable to the next of. kin as personal property.

It is a general proposition, well sustained by authority, that the proceeds of the sale of an infant’s lands are deemed '• and treated as real estate and descend to his heirs at law in, case of his death intestate during his minority. Forman and another v. Marsh and others, 1 Kern, 544; Matter of Price, 67 N. Y., 231; Horton v. McCoy, 47 id., 21; Sweezy and, others, v. Thayer, pub. adm’r., l Duer, 286.

This is necessary to preserve intact the right of inherit-, anee, as the statutes of descent and distribution are not the... same.

But in this case the counsel for the contestant claims that inasmuch as the administrator received this money on the hypothesis that it was personal estate and inventoried it as, such, and incorporated it in his account that he is now, estopped from asserting the money is real property and that, he cannot rebut and impeach his inventory.

Sections 1832, 1833 and 1834, of the Code of Civil Procedure, are re-enactments of long existing statutes, and while,' they specify in what particulars an inventory can be, rebutted or explained also provide that the prohibition does not infringe upon any rule of evidence winch the adminis-trator was otherwise permitted to invoke, nor were these; statutes designed to operate upon an accounting where the.’ trustee’s management of his trust is upon trial. Thorne v. Underhill, 1 Dem., 306, 313; Redfield’s Sur. Pr., 711; McClellan’s Sur. Pr., 601.

The administrator makes his inventory soon after assuming the trust and when ordinarily he is only slightly familiar with the estate of his intestate, and if he inadvertently, causes property to be appraised which belongs to other parties, he should not be chargeable therewith. The obh-' fation he assumes is to manage the property of the deceent and when he has done that as the law directs his duties to the next of kin end.

Nor does the doctrine of estoppel apply to this case in favor of contestant. This money was paid to Mr. Randall with .the knowledge of the next of kin and they knew of these payments made to the mother and did not interfere to prevent the administrator making them. But beyond all this the bare fact that the administrator has seen fit to designate this money as personal properto does not in truth alter its character. If that is so, then by that act the mother’s right to the use of this property would be effectually cut off, for an estoppel is nothing unless reciprocal in its effect and operation. Clute v. Jones, 28 N. Y., 280.

The administrator in this case has given the usual bond. For what ? To ensure to the next of kin a faithful performance of the trust committed to him, to wit: the management of the personal effects of the intestate as the statutes provide. The sureties guarantee to them a strict compliance with the terms of this bond, but their liability cannot be extended beyond its terms. People v. Pennock, 60 N. Y., 421; Miller v. Stewart, 9 Wheaton, 680.

Again the surrogate’s court can have no jurisdiction to determine the rights of these parties to this money. That court is one of limited jurisdiction, and its powers and limitations are prescribed and defined by statute. Section 2472, Code of Civil Procedure; Bevan v. Cooper, 72 N. Y., 317, 327.

It cannot determine the right of inheritance of heirs at law to real estate in a contested proceeding. Nor are the division and partition of real estate or its avails within the compass of the surrogate’s jurisdiction, except by proceedings to pay the debts of decedent.

The mere ipse dixit of an administrator characterizing as personal property that which the law designates as real éstate does not in fact alter its character so as to vest the surrogate with jurisdiction. The jurisdiction of a court is not so pliable and elastic that it can be enlarged or restricted to suit the caprice of every suitor. The contestant must seek redress in another court for the proceeds of this real estate.

The administrator in addition to the avails of this land received in 1870 $202,97. He expended a few dollars of this and the residue he has kept for a small portion of the time in the bank in his own name, but for the greater part of this long time he has had it stowed away in his bureau drawer. He testifies this could have been invested with reasonable diligence and it was incumbent upon him to do so. Shuttleworth v. Winter, 55 N. Y., 624, 631: Hasler v. Hasler, 1 Brad., 248.  