#### Matter of Estates of Patrick H. Gearns and Mary Ann Gearns, Deceased.

(Surrogate’s Court, New York County,

April, 1899.)

1. Surrogate’s Court — Power of referee to allow amendments to an account.

A referee appointed by a surrogate has the same power as the latter to allow amendments to an account filed by an executor, and on the hearing may allow an amendment which does not include a transaction which is subsequent to the return day of the citation.

*:2.*Same — Executor may credit himself for the maintenance of infants.

An executor may properly credit himself with disbursements made by him as such for the' maintenance of the children of the ■ testator, where no moneys have ever been turned over to the executor as guardian.

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 mothér’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' *77the 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 errors; (3) that the-referee had no power to permit an amended account to he 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 sucessfully, 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 jn his account. Browne v. Bedford, 4 Dem. 304.

The applications must be denied.

Applications denied.