
    Martha Ann Johnson, Plaintiff, v. Alexander Weir et al., Defendants.
    (Supreme Court, Clinton Special Term,
    May, 1901.)
    Partition — Reimbursement refused a tenant in common for overpayments made as executor for the support of an infant tenant in common — Effect of decree passing his accounts.
    Where an executor, empowered by a will to use the rents and income of certain of the testator’s real estate to support an infant legatee, devisee and tenant in common, makes payments in that behalf in excess of such rents and income, he cannot procure reimbursement in an action to partition the real estate even though his accounts for her support have been finally settled by the proper surrogate and show a balance in his favor.
    A surrogate cannot make a decree in favor of an executor for overpayment and, in any event, his decree would not be a lien on real estate.
    Action for partition.
    Wheeler & Woodward, for plaintiff.
    Shedden & Vert, for defendant Alexander Weir.
   Russell, J.

I cannot hold in favor of the contention of the executor. He took possession of the personal property and the real estate of the testatrix. He was empowered by the will to use the rents and income of the real estate for the support of the infant Martha Ann Johnson, who took as legatee the personal property and an undivided half of the realty in which this executor had the personal interest of t-he other undivided half. He had no power to eat up a large part of the share of the infant in the real estate for her alleged support and maintenance, nor does the decree of the surrogate on his final settlement of accounts, in which she was nominally represented by a guardian ad litem pro hac vice, establish the binding validity of a balance of payments by the executor over and above the receipts of income which should be a charge upon the realty devised to the child. She was helpless to control or regulate the amount he should charge or expend for her maintenance, and had the undoubted right to rely upon his not acting as her trustee in the receipt and expenditure of the income devoted to her support of an estate managed by himself, and at the same time currently create himself, without her legal participation, into a creditor for the amount he should voluntarily expend or charge, so as to deprive her of a substantial part of the value of the property devoted by the will to her support and maintenance.

Even if the plaintiff had not been an infant the decree of the surrogate would not be a lien upon the real estate. Bennett v. Crain, 41 Hun, 183; Sharpe v. Freeman, 45 N. Y. 802; Platt v. Platt, 105 id. 488.

Nor can the surrogate make a decree in favor of the executor for overpayment to a legatee. Matter of Underhill, 117 N. Y. 471; Matter of Hodgman, 140 id. 421; Matter of Lang, 144 id. 275.

The plaintiff may have judgment for partition and sale, with costs payable out of the proceeds of sale, except that the costs for proceedings after notice of trial and the trial fee shall be charged upon the share of the defendant Alexander Weir.

Ordered accordingly.  