
    In the Matter of the Accounting of Alexander F. Lawson, Administrator of the Estate of Edwin R. Lawrence, Deceased, who was the Administrator of the Estate of Sarah J. Lawrence, Deceased. Jacob Deitz and Zilar Minard, Appellants; William L. Thornton, as Administrator de bonis non of the Estate of Sarah J. Lawrence, Deceased, Respondent.
    
      1Notice of appeal from a surrogates decree, liberally construed — right of the administrator of a deceased administrator to have recourse to a note held by the latter against his decedent—failure, of a purchaser under a mortgage foreclosure by 'advertisement, to file the papers.
    
    Where a proceeding for the judicial settlement of the account of a deceased administrator results in a decree in favor of the administrator de bonis non of the deceased administrator’s intestate, á notice of appeal, filed by the sureties of the deceased administrator, “ from the report of the referee and the decree of the surrogate rendered thereon *' * * especially from that portion of said report and decree and each and eivery part thereof relating to any charge or indebtedness against the administrator of the estate of Lawrence, deceased, and in favor of William L. Thornton, administrator de bonis non,” is to be liberally construed in favor of the sureties, and as thus -construed it is sufficient to bring up for review not only the decree but all the orders and findings upon which it rested.
    Where it appears upon such an accounting that the estate of the deceased administrator holds a note made by the latter’s intestate, the decree which fixes the amount of the sureties’ liability should preserve to the estate of the deceased administrator the right of recourse to the note, or permit the sureties to assert the existence of the note as a defense to their liability upon the bond.
    The failure, of the purchaser at a sale under the foreclosure .of a mortgage by advertisement, to file the affidavits of :sale which were made in due form, does, not affect her title.
    Appeal by Jacob Deitz and .Zilar Minard, sureties on the bond of Edwin R. Lawrence, deceased,; who was the administrator of the estate of Sarah J. Lawrence, deceased, from a decree of the Surrogate’s Court of Sullivan county, entered in said Surrogate’s Court on the 23d day of January, 1899, 'judicially settling the accounts of Edwin R. Lawrence, as administrator, etc., of Sarah J. Lawrence, deceased, especially from every part thereof relating to any charge or indebtedness against the administrator of the estate of Sarah J. Lawrence, deceased, and in favor of William L. Thornton, administrator de bonis non, or adjudging the payment of money by the administrator, or directing any proceedings to collect any sum so adjudged against said estate or the sureties on the bond of the administrator of said estate. ■
    
      John P. Roosa, Jr., for the appellants.
    
      Frank S. Anderson, for the respondent.
   Landon, J.:

Edwin R. Lawrence was appointed, August 17,1891, by the surrogate of the' county of Sullivan, the administrator of the personal estate of his deceased wife, Sarah J. Lawrence, who died February 20, 1888. These appellants were; the sureties upon the bond given by him for the faithful discharge of his duties. He filed an inventory May 25,1892, in which he stated assets in his hands amounting to $997.25, less $150 thereof set off to him by the appraisers, and stated therein that $915 thereof was the amount bid by himself upon the foreclosure of a mortgage which belonged to his intestate at the time of her death, and which he had foreclosed as her administrator. He filed an account with the surrogate September 11, 1893, in which he charged himself with the $997.25, and claimed credits for payments to the amount of $184.49, besides his commissions. A hearing was had thereon in the Surrogate’s Court, but no adjudication was made. He subsequently sold-the real estate thus acquired for $10,000.

The fact was that his intestate had foreclosed the mortgage in her lifetime and bid in the property herself. The foreclosure was by advertisement, was regular in form, except that all the affidavits had not been filed at her death, and never have been filed. The administrator held the note of his wife payable to himself for $650, which apparently was a valid obligation against her estate.

The administrator died in May, 1895, without ever having had any judicial settlement of his accounts as administrator, and apparently insolvent.

In June following, Alexander F. Lawson was appointed administrator of Edwin R. Lawrence’s estate. August 13, 1897, William L. Thornton was appointed administrator de bonis non of the estate of Sarah J. Lawrence.

January 3, 1898, Alexander F. Lawson, as administrator of Edwin R. Lawrence, instituted this proceeding in the Surrogate’s Court of Sullivan county for a judicial settlement of the accounts of Edwin R. Lawrence, as late administrator of the estate of Sarah J. Lawrence. Citations were issued and served upon, among others, these appellants, the sureties upon Edwin R. Lawrence’s bond as administrator, and upon William L. Thornton, the administrator de bonis non of the estate of Sarah J. Lawrence; all of whom appeared upon the accounting.

Lawson, as administrator, filed an account in which he stated that no assets had come to his hands; that he knew nothing of the state of the accounts of Edwin R. Lawrence as such administrator except as stated in the said account filed as aforesaid by said Lawrence with the surrogate, and that he, Lawson, as administrator of Edwin R. Lawrence, held as a claim against the- estate of said Sarah J. Lawrence the said note of $650, and could find no property of her estate out of which to satisfy it. Lawson did not make the said account filed by Edwin R. Lawrence, as administrator of Sarah J. Lawrence, part of his account in behalf of said deceased administrator, but he referred to it, and it was read in evidence in this proceeding.

Thornton, as administrator of the estate of Mrs. Lawrence, filed objections to Lawson’s account, denying that the note of Sarah J. Lawrence was a valid claim against her estate in favor of said Edwin R. Lawrence’s estate, insisting that the latter estate should account for the $915, the amount of Edwin R. Lawrence’s bid upon the second foreclosure sale aforesaid, anid challenging a credit claimed in behalf of Edwin R. Lawrence of $51.10, the costs of the first foreclosure. ’ '

These appellants filed no objections to Lawson’s account.

The surrogate thereupon, under section 2546, Code of Civil Procedure, made an order referring. the matter and all 'questions arising upon the settlement of said account to- a referee to hear and determine, subject to modification or confirmation by the surrogate. ' The referee practically adopted the account as filed with the surrogate by Edwin R. Lawrence in his lifetime, and found that said Lawrence at the time of his death had in his hands as administrator of the estate of Sarah J. Lawrence, $707.76. The referee refused to pass upon the validity of the claim upon the said note of $650 given, by Sarah J. Lawrence to Edwin R. Lawrence.

The surrogate afterwards confirmed the report of the referee, and directed that a decree be entered in accordance therewith, the order reciting that due notice .of the filing of the report was served upon,' among others, these appellants more than eight days before the' order of confirmation,, and that no exceptions thereto had been filed. It does not’ appear that any notice of the motion for the confirmation of the referee’s report was served upon these appellants.

Pursuant to said order of confirmation, and upon notice to these appellants of the application to the Surrogate’s Court for a settlement of the decree, the court, did settle and enter the decree pursuant to the report of the referee, adding $199.12 interest to the amount found due, because Edwin R. Lawrence had mingled the funds of the estate with his own, making $906.88, which the decree directed- • Lawson, as administrator of the estate of Edwin R. Lawrence, to pay out of the funds of the estate to Thornton, as administrator of the estate of Sarah J. Lawrence, together with certain allowances of costs.

After the order of confirmation, and before the decree, it was stipulated between the attorney for Thornton, as administrator of the estate of Sarah J. Lawrence, who is the only respondent appearing upon this appeal, and the attorney for the sureties, the only appellants, that the sureties could file exceptions to the referee’s report nunc jpro tune, and that they waived notice of motion for the confirmation of said report, and that the same stands as in all things confirmed.

The sureties then filed exceptions to the referee’s report, excepting to the finding that Sarah J. Lawrence Owned at the time of her death the bond and mortgage aforesaid, and that Edwin R. Lawrence, as administrator, foreclosed the same after her death, and thereupon bought the mortgaged property individually, and agreed to pay $915 therefor, and to the items of the account and the account itself as stated by the referee, and to his refusal to pass upon the validity of the claim of Lawson, as administrator, against the estate of Sarah J. Lawrence for the said note of $650.

The sureties then appealed to this court from the decree of the Surrogate’s Court.

Objection is taken by the respondent to the sufficiency of the notice of appeal to bring before the court the merits of the controversy. The notice of appeal does not in terms specify the decree of confirmation of the referee’s report. The notice of appeal is “from the report of the referee and the decree of the Surrogate rendered thereon * * * especially from that portion of said report and decree and each and every part thereof relating to any charge or indebtedness against the administrator of the estate of Lawrence, deceased, and in favor of William L. Thornton, administrator de bonis non.” ::

Section 25Y1, Code Civil Procedure, provides that “ An appeal taken from a decree brings up for review each intermediate order which is specified in the notice of appeal, and necessarily affected the decree.” Section 2545 provides that “An appeal from a decree or an order of a Surrogate’s Court brings up for review * * * each decision to which an exception is duly'taken by the appellant.” It will be observed that the language here used is less exacting than that employed in section 1301, relative to apjreals in another class of cases, in which it is prescribed that “ Where the appeal is from a final judgment * * * and the appellant intends to bring up for review thereupon an interlocutory judgment, or an intermediate order, he .must, in the notice of appeal, distinctly specify the interlocutory judgment or intermediate order to be reviewed.”

In this case the referee’s report is the basis of the order of confirmation and subsequent decree;, and it is plain from the notice of .appeal that the sureties intended to bring up for review, not only the decree, but all the orders and findings upon which it rested.

We think the notice of appeal should be liberally construed in favor of the sureties against the administrator of an estate other than the accoiinting administrator, and that so construed it is'sufficient."

It is urged that the sureties filed no objections to the account of Lawson in behalf of Edwin .R. Lawrence, as administrator of Sarah J. Lawrence. His account, in such behalf, was to . the effect that none of the assets of Sarah J. Lawrence’s estate had come to his hands, and that he did not know whether there were any, but that he, as administrator of Edwin R. Lawrence, held a claim for, $650 against the estate of Sarah J. Lawrence.' The administrator de bonis non of the latter’s estate appeared, and on his allegations and claims Edwin R. Lawrence’s estate became charged with.' a debt for which these sureties seem to be liable, and the credit which Edwin R. Lawrence’s administrator claimed practically in their favpr was disallowed. It is not clear that, they were called upon formally to object to Thornton’s claims. They natui’ally would expect Lawson to oppose them, and to seek the proper order respecting the note, and they ought to be permitted to be heard on appeal, upon the issues which he raised in effect in their behalf. The result is, they appear to have been cast in a liability which they never assumed, namely, for the proceeds of a mortgage which Sarah J. Lawrence in her lifetime had satisfied by the purchase upon her foreclosure of it of the real estate covered by it. She -foreclosed the mortgage by advertisement, and purchased the mortgaged real estate at the foreclosure sale for $1,160, being more than was due thereon. The affidavits of sale were all made in due form,' but were not all filed. Nevertheless, the title passed to Sarah j. Lawrence, it being her business whether she would preserve the evidence of her title. (Mowry v. Sanborn, 68 N. Y. 163 ; S. C., 72 id. 539; Tuthill v. Tracy, 31 id. 158; Osborn v. Merwin, 12 Hun, 333.)

Respecting the note of $650 given by Sarah J. Lawrence to Edwin R. Lawrence, if it is a valid claim in favor of Edwin’s estate against Sarah’s, then Sarah’s estate should pay to Edwin’s estate the amount thereof, or such ratable part as Sarah’s estate can in the due •course of administration pay thereon; and whatever that sum is, it should reduce the amount that Lawson, as administrator of Edwin’s estate, should pay to the administrator of Sarah’s estate, and thus pro tanto reduce the liability of the sureties. The surrogate refused to pass upon the matter, upon the ground that he had no jurisdiction in this proceeding. It is true that the amount to be credited Edwin’s estate thereon could not be determined without an accounting of Sarah’s estate. But the surrogate’s decree fixes the sureties’ liability. (Martin v. Hann, 32 App. Div. 602; Scofield v. Churchill, 72 N. Y. 565.) It should have reserved to Lawson, as administrator, and thus to them, the right of recourse to the note in such proceeding against the estate of Sarah J. Lawrence as they might be .advised to take, or left it open to the sureties ás a defense to their liability upon the bond.

• The decree of the surrogate is reversed as to these appellants, and the reference discharged, with costs against Thornton as administrator, and a new hearing granted before the surrogate.

All concurred.

Decree of the surrogate reversed, reference discharged, with costs against Thornton as administrator, and a new hearing granted before the surrogate.  