
    Matter of Estate of Patrick H. Gearns and Mary Ann Gearns, Deceased.
    
      (Surrogate’s Court, New York County
    
    
      Filed April, 1899.)
    1. Referee — May Allow Amendments to Account.
    A referee has the same power to grant amendments to accounting as the surrogate himself — and may include any amendment which does not include a transaction subsequent to the return day of the citation.
    :2. Executor — Accounting.
    Moneys paid out by the executor for the maintenance of the children of the testator in his capacity of executor only, no moneys having been turned over to him as guardian, were properly credited in his account.
    Application to revoke letters, open decree, etc. The petitioner is a son of the decedent, a legatee under his father’s "will and next of kin of his mother.
    The respondent is executor of the will and administrator of petitioner’s mother’s estate. Petitioner was a minor when appointments were made. That accounts were filed and proofs .submitted of service of citation on him to attend accounting. He denied such service on him.
    Lenehan & Dowley, for petitioners; Titus & Dowling, for respondents.
   Varnum, S.

This matter was argued before Surrogate Arnold, and has since been submitted to me. The applications to vacate the decrees herein are based mainly on five grounds: (1) that the petitioner was never served with the citations; (2) that the accountings are fraudulent and reveal gross er-tots; (3) that the referee had no power to permit an amended account to be made; (4) that the decrees do not provide for ■distribution; and (5) that the executor could not account as guardian while accounting as executor. A careful study of the affidavits submitted makes the conclusions inevitable that the petitioner was personally served with the citations. Furthermore, in going over the various accountings filed, I fail to find evidence sufficient to substantiate the allegations of fraud or error made by the petitioner, or to justify the vacating of the decrees herein made upon two accountings, both of which were contested, in part successfully, by the special guardian appointed by the court. So far as the third objection is concerned, the power of a referee to grant the same amendments that the surrogate himself may allow cannot be questioned. In an accounting the referee may allow any amendment which does not include a transaction subsequent to the return day of the citation. Estate of Odell, 18 N. Y. St. Repr. 997; Estate of William Munzer, Surr. Dec., 1893, pp. 454-457. If the petitioner desires to raise the question of distribution, let him take appropriate independent proceedings, bringing in all of the parties interested in the fund. The fifth objection urged by the petitioner is also without merit. The moneys paid out by the executor for the maintenance of the children of the testator were disbursed by him in his capacity of executor only. There has never been any turning over of moneys to himself as guardian. Hence, these sums were properly credited in his account. Browne v. Bedford, 4 Dem. 304.

The application must be denied.

Applications denied.  