
    Hillman, Guardian, &c., Appellant, v. Stephens and wife, Respondents.
    I- W. died intestate, leaving two children, and a widow who subsequently married H. H. entered into a contract with the administrator of the estate of I. W., by which, in consideration that the administrator would pay him $260 per annum for boarding, &c., his wife’s children by her former marriage, he agreed to relinquish all claims to the rents and profits of the real estate of the intestate, which he had in right of his wife, so long as the agreement in respect to the hoarding of the children should continue to be executed; Held, that as the administrator had, in that capacity, no authority to make the agreement in respect to the rents and profits of the real estate, he must be deemed to have acted in his personal right and behalf, and that the children having no legal or equitable interest in the share of the rents and profits to which H. was entitled, as husband of their mother, the administrator was not bound to account to them for the rents and profits which he received by virtue of such agreement.
    Appeal from an order of the Supreme Court, made at general term in the seventh district, affirming & decree of the surrogate of Wayne county, made on the final settlement of the accounts of the appellant, as general guardian of the respondent, Eliza B. Stephens.
    James Wallace, of Troy, died in 1836, intestate, owning real and personal property, and leaving a widow and three children, of whom the respondent, Eliza B. Stephens, is one, his only heirs. The widow and her brother, Jesse Anthony of Troy, who was in partnership with Mr. Wallace at the time of his death, took out letters of administration. Anthony transacted all the business of the administration, and also took charge of the real estate left by Mr. Wallace, and collected the rents thereof. In March, 1838, the widow married Dr. John Hillman, and the children became members of Ms family. Clarissa, one of the children, died in that year. In 1839, Dr. Hillman, with his wife and the two surviving children, removed to Wayne county. In October of that year, he and Anthony, the administrator, entered into an agreement in writing, whereby Hillman agreed that all the interest wMch he had by marriage in the personal estate and in the rents and profits of the real estate of Wallace had been paid by Anthony up to the date of the agreement; that Hillman would give board, lodging, washing and suitable attire to the surviving children of Wallace, for one year for $200, payable semi-annually, and would continue to keep them on the same terms so long as the parties should agree to it. He agreed to relinquish all claims to the rents and profits of the Wallace real estate, “ for the consideration of $200 a year, as above specified, during the stay of said children and no longer,” and Anthony agreed to pay the sum of $200 on the terms above specified “for the consideration of said Hillman’s part of the rents, issues and profits arising from the estate of James Wallace, deceased.” In 1850, Eliza Wallace, who up to that time liad resided in the' family of Dr. Hillman, married the respondent, Stephens. ‘ The appellant was the guardian, under appointment by the surrogate, made in July, 1848, of Eliza and her brother, and he had also been constituted by Dr. Hillman and wife, before July, 1848, their attorney and agent in respect to their interests in the Wallace estate. In December, 1848, the appellant went to Troy to receive from Anthony, the administrator, whatever might be in the hands of the latter, belonging to either of the wards of the appellant, or to Dr. Hillman and wife. Upon examining Anthony’s account of his advances to or for the benefit of Mrs. Hillman and the children respectively, it appeared that there had been expended for the children a large sum which clearly belonged to Mrs. Hillman, provided there was nothing in the agreement made in October, 1839, between Dr. Hillman and the administrator, to bar her claim as the widow of Mr. Wallace, and the heir of their deceased child, Clarissa. The money of Mrs. Hillman, thus expended for the children, exceeded the whole amount received by the appellant from the administrator, and he therefore accounted for and paid over to Mrs. Hillman the whole amount received by him, except the sum of $147, which was retained, with her assent, for the use of the respondent, Eliza, and for which sum the appellant charged himself in his accounts with his ward.
    In January, 1853, Eliza having become twenty-one years of age, the appellant appeared, with her and her husband, before the surrogate of Wayne for a final settlement of his accounts as her guardian. Upon that accounting the appellant charged himself with two-ninths (the respondent, Eliza’s, share) of the moneys received by him subsequent to the settlement with Anthony, but the respondents claimed and the surrogate decreed that he should also be charged with two-ninths of all the sums received at and prior to the settlement with Anthony, with interest thereon, on the ground that they belonged to Eliza, and were improperly paid to Mrs. Hillman. On appeal, this decree was affirmed by the Supreme Court, and the guardian appealed to this court.
    
      James C. Smith, for the appellant.
    
      John H. Reynolds, for the respondent.
   Johnson, J.

The question in this case is conceded by the parties to depend upon the construction of the sealed instrument, dated Oct. 9, 1839, and executed by John Hillman and Jesse Anthony. The respondents insist that it operated as an assignment of all the right of John Hillman, by virtue of his marriage with the widow of James Wallace, to the property of Wallace, which she had as widow and as heir of one of his children. This construction cannot be sustained. The agreement was made with Anthony, the administrator of the estate of Wallace, who is called in the beginning of the paper his executor. It, however, contains no agreement by him, in terms, as representing the estate; nor had he, in his representative capacity, any authority to enter into the engagement which he, by its terms, assumed to make. The interest of Hillman, by virtue of his marriage, in both the real and personal estate, was a legal interest in him. In that share the children of Wallace had no interest, legal or equitable, and therefore they could have no right to complain of any agreement which the administrator and Hillman chose to enter into in respect to it. There can, therefore, be no presumption or intendment that any part of it was to be or to enure for their benefit, except in so far as the agreement itself expresses. Anthony personally engages to pay to Hill-man 1200 a year in consideration of Hillman’s part of the rents, issues and profits arising from the estate of Wallace, so long as Hillman should board, lodge, wash for and give attention to Wallace’s surviving children. Hillman was not legally bound to support these children of his wife by her former marriage, nor does he seem to have been desirous to take his wife’s share of the property, but only to secure himself against being put to the expense of their support in case they lived with him. He, therefore, transferred his rights to Anthony, taking his engagement to pay $200 a year, and probably relying on his integrity to make a just disposition of the moneys which should come to his hands when the children should be of sufficient age to protect Anthony against the expense which he might incur by the payments he agreed to make. This reliance seems to have been well founded; for, when Anthony stated his account with Levi C. Hillman, representing the children and Mr. and Mrs. Hillman, Anthony did not claim to retain any part of the proceeds as his own, but paid over the ' unexpended balance. In this balance the children acquired no new rights by the agreement.

The Supreme Court and surrogate having erred in this particular, their judgment and decree should be reversed.

Denio, Ch. J., Selden, Brown, Paige and Shankland, Js., concurred in this opinion. Comstock, J., did not sit in the case.

Bowen, J. (Dissenting.)

Hillman, by his marriage, which took place in 1838, became the owner of his wife’s interest in personal estate of her former husband, or at least it became his when reduced to possession. He had the right to reduce it to possession at any time, and to assign, sell and dispose of it before it was reduced to possession ; and her share of the rents and profits of the real estate became his absolutely. The contract between him and the administrator, if it did not operate as a transfer of his wife’s share.of the personal estate to the appellant’s ward and her brother, in whose behalf the administrator acted in making the contract, was an acknowledgment, on his part, that he had received such share in full, and was evidence before the surrogate that such was the fact. So far as related to the rents and profits of the real estate, the contract operated as a release of his interest therein, and as the administrator, in making the contract, assumed to act in behalf of the appellant’s ward and her brother, who were then infants; the release enured to their benefit.

It is true that the administrator, as such, had no authority to interfere with the real estate left by his intestate, or with the rents and profits thereof, or to bind the infant children of the intestate by any contract relative to their shares of the personal estate; but he undertook to contract in relation thereto, and bound himself personally. Hillman, the other contracting party, therefore was bound; and as the terms of the contract had been complied with, by the parties thereto, to the time the appellant was appointed guardian, the latter then had no right to disaffirm it when such disaffirmance was detrimental to the interests of his ward. That it was thus detrimental must have been perfectly apparent to the appellant at the time he paid to Mrs. Hillman or accounted to her for the whole amount he had received from the administrator, when by the terms of the contract the whole belonged to his ward and her brother, except, perhaps, that part thereof which Mrs. Hillman, or her husband in her right, was entitled to as heir and next of kin of her deceased daughter; that the appellant was then aware of the existence of the contract is not questioned. But the husband of the appellant’s ward was present when the appellant accounted to and settled with Mrs. Hillman for the funds received of the administrator, and assented to such settlement; and it is contended that he and his wife are therefore bound thereby, or at least are estopped from calling in question its correctness. The only question at issue on that settlement was, whether the-, appellant had accounted for all the funds received by him of the administrator, it being assumed that the whole, be it more or less, belonged to Mrs. Hillman. The rights and interests of the respondents were not in question. Neither of the respondents was a party to the settlement, and therefore neither is bound by it; and as the appellant and Mrs. Hillman had, at least, the same knowledge of the rights of the respondents as the latter had, and as the settlement was not in the least influenced by any act or declaration of either of the respondents, there is no estoppel in the case.

I think the surrogate was right in charging the appellant with two-ninths of the amount received of the administrator.

The only other point made by the appellant on the argument was, that the surrogate erred in charging him personally with the costs of the proceedings on the settlement The costs were in the discretion of the surrogate; and as the appellant did not in his account charge himself with any part of the moneys received by him of Anthony, the administrator, which rendered it necessary for the respondents to produce the requisite evidence to charge him, the surrogate was right in charging him with the costs of the proceedings, at least there was no abuse of discretion in doing so.

I think that the judgment should be affirmed, with costs, and the proceedings remitted.

Judgment of the Supreme Court and of the surrogate reversed; account to be restated, costs to abide event.  