
    In the Matter of the Estate of Frank H. W. Quinn and Fannie G. Quinn, Infants.
    
      (Surrogate’s Court, Westchester County,
    
    
      Filed February, 1888.)
    
    1. Practice—Parents op minors—Right to apply to court under Code Crv.- Pro., § 2846.
    A parent of a minor may under Code Civil Procedure, section 2846, apply for an order directing the guardian of a minor to apply the income, or, if needful, a part of the principal of the funds in which the minor is interested under a will, to his education and support, but the parent is not empowered by said section to take proceedings against the executor of the will giving the minor said interest, to such end.
    '2. Same—Porm op the order.
    An order cannot properly be made directing the guardian to pay over money for the purpose of the education and support of an infant beneficially interested in an estate to a person who is in no way amenable to the surrogate’s court, for its application. The proper form, where it appears to be advisable that moneys should be applied to such a purpose, would be one directing the guardian to so apply them.
    .3. Same—Under Code Civ. Pro., § 2685.
    Under Code Civil Procedure, section 2685. an application for the removal of the executor can only be made by a person interested in the estate. A parent of an infant, who is beneficially interested in the estate, has no such interest himself as to entitle him to make the application.
    
      The father of the infants set forth in his petition that an order was made -by this court in 1886, which .directed the Farmers’ Loan and Trust Company, guardian of the estate of said infants, to pay out of the money in its possession belonging to them to their father a certain sum of money for expenses which he had already incurred for their support, maintenance and education, and a certain sum quarterly thereof until the further order of the court. It also showed that since the entry of said order the-petitioner had received a part of the amount named, that the boy was in his sixteenth year, and that the petitioner relying upon the order, had more than a year previously sent him to school, and expended a large sum for his board and tuition. He also showed that the executors of the will of John G-. Hill had accounted, and on such accounting, which occurred in 1885, the total net amount of such personal estate was found to be $160,000. The petitioner asked that the executors and guardian be cited to show why the latter should not be given by the order a sufficient sum of money to enable said guardian to comply with the terms of the order, and why the guardian should not pay the same to the petitioner for the purposes therein named. The answer of the executors stated, among other things, that they were not parties to the proceedings which resulted in the order of 1886, and did not appear therein, that the widow of decedent was entitled under the will to an annuity of $500, and that one Weston was entitled to an annuity of $500, both of which were made by the will first charges upon the estate, and directed to be paid semi-annually, and that both of the annuitants were still living, and that moneys had been paid by the executors on account of said infants, and the amount exceeded $800, what they (the infants) were entitled to receive after the preferred annuitants were paid. They also showed that the guardian had applied to this court in 1886 for an order directing the executors to pay over a certain part of the residuary estate, and the application had been denied, and further, that the decree of 1885 had been affirmed on appeal.
    
      Edward F. Brown, for petitioner; F. H. Rodman, for executors.
   Coffin, S.

Of course, the executors are not bound by the order of September, 1886, as they were, in no way, parties to that proceeding, and they have a right to require-the principle involved in it, as it is sought to be used against them here, to be considered afresh. Probably that order was made almost as a matter of course, both parties being willing to receive the money, the one through the other. It does not appear that, at that time, the guardian, as such, had any funds- This court had, by the decree on the accounting, in June, 1885, determined that the annuities to the widow and to Mrs. Weston, by the terms of the will, had a preference of payment out of income, and that the executors should retain and invest the whole fund, in order that it should earn sufficient to meet such payments. This -decree, on appeal was affirmed. When the order of September, 1886, was made, directing the executors to pay certain funds to the guardian, the provisions of that decree probably escaped the attention of the court. In December, 1886, an application was made by the trust company for an order directing the executors to set apart and transfer to the company, as guardian, one moiety of the residuary estate for tíre use of said minors. This application was -denied. The present application seems to involve, to a certain extent, the considerations which induced a denial of that motion. Of course, if the guardian had funds in hand, there would be no occasion to ask this court to direct the executors to pay them moneys, to pay the petitioner.

Doubtless, the father of these minors may, under § 2846 of the Code, apply for an order directing the guardian to apply the income or, if needful a part of the principal of the fund to their education and support, but he does not seem to be empowered to proceed against the executors, to any such end. That duty devolved upon the guardian, who has already as is seen, made an effort in that direction, and failed. Besides, an order cannot properly be made, directing the guardian to pay over money, for the purposes of education and support, to a person who is in no way amenable to this court for its application. Substantially, this question was determined in the case of Houghton v. Watson, (1 Dem., 299). The proper order, where it appears to be advisable that moneys should be applied to such purposes, would be one directing the guardian so to apply them. The responsibility would then be placed upon one who would be answerable here for the faithful performance -of the duty. If it saw fit to hand the money to the father to be applied, and it were misappropriated by him, the guardian would be liable. These reasons require that the present application be denied.

If it were necessary to consider the matter on its merits, it would also fail. The statements submitted show that the present net income is insufficient to pay the annuities, which have a preference.

Subsequently, the same petitioner, as guardian of the persons of the minors, presented a petition praying for a citation to the executors to show cause,for reasons assigned, why they should not be removed. As it is understood, he is only the natural guardian. According to § 2685 of the Code, such application can be made only by a person interested in the estate. He has no such interest, and his prayer must, therefore, be denied.  