#### In the Matter of the Estate of Worthy J. Rolph, Deceased.

*(Surrogate’s Court, Chautauqua County,*

*Filed February 10, 1890.)*

Executors and administrator—Under what special crcumstances MAT PAT MORTGAGE, TAXES AND INSURANCE ON REAL ESTATE AND MAKE REPAIRS.

Where an administratrix of the estate of her deceased husband, who *65died leaving a farm incumbered by mortgage and personal property, and leaving four minor children by her, of the ages of thirteen, ten and seven years, and the youngest seven months, is also general guardian of such minor children, and from the personal property of the estate completes repairs upon the dwelling-house on the farm, commenced by her husband in his lifetime, necessary to make the house tenantable for tne use of herself and minor children, and in good faith pays off the mortgage on the farm and taxes, and insurance on the buildings thereon, necessary for the preservation of the property of the estate, and beneficial to such'minor children, her wards, *Held,*that, in an accounting by her as such administratrix, she should be credited with such payments, and that the surrogates •court has jurisdiction to allow same.

H. *C.*Kingsbury, for administratrix, the petitioner; *Van Dusen &*Martin, for contestants, and Martin, special guardian for there minors.

Sherman, S.

The deceased died intestate, August 12,1880,leav-ing him surviving Jane E._Eolph, his widow, now Williams, and four minor children, of the ages of thirteen, ten and seven years, and the youngest seven months. He owned, at the time of his death, a farm of fifty-one acres in the town of Stockton, of the estimated value of about $1,200, and personal property of the value of about $500, and besides having insurance on his life of about $2,000, payable to his estate. The widow was appointed administratrix on August 21, 1880, nine days after the decease of her husband and collected such insurance and took possession of the personal property. An inventory was duly made and filed September 13th of the same -year, showing the value of the personal property, including such insurance, at about $2,567, ana including the widow’s statutory exemption of $150 set off to her therein.

• The said widow and administratrix was duly appointed guardian of the persons and property of her four minor children November 15, 1880, and duly qualified and has not been discharged.

During several weeks prior to his death the deceased had been purchasing lumber and materials and making necessary repairs on the small dwelling house on the farm where he and his family lived.' He had employed mechanics and workmen in making such repairs and owed them therefor and for such materials about $160. The deceased was suddenly killed by an accident when at work on his farm, and when his corpse was taken to the „ house on the day of Iris death the principal rooms in the house were filled with lumber, and materials for such repairs, and rubbish which his neighbors removed.

There was then a mortgage on the farm executed by the deceased in his lifetime to one Goodrich, on which there was due about $700.

After the death and burial of her husband the widow completed the repairs upon the house according to his previous plans at an additional expense of about $160. I find that such repairs were necessary for the preservation of the property and to make the house tenantable for her and her children.

The widow, Mrs. Eolph, was married to one Williams on January 24, 1881, and had by him a child which thereafter lived with .her in the house on the farm until March, 1888, he assisting her *66in carrying it on, and in support of her children and she assisting in the care and support of his child.

Mrs. Williams, after her appointment as administratrix and guardian for her children paid the amount due upon the mortgage, being $712.65, and paid taxes on the farm from year to year until 1888, $66.75 and insurance $19.75, stated in the account herein and also paid for such necessary repairs as I find in amount $320, making in all $1,119.15, which she paid from the personal property of the estate, all of which I find were necessary for the protection and preservation of the property of the estate and especially so for the interest of her said four minor children who lived with and were educated and supported by her on the farm until March, 1888. It should be borne in mind that this vridow in making such payment for the benefit of her minor children and against her own interest would otherwise have been entitled on settlement of her accounts as administratrix to the distributive share of one-third of said $1,119.15, which, with interest from the time of accounting (hereinafter mentioned), on March 20, 1882. before the then surrogate, would amount to about $500.

It appears that the administratrix, on March 20, 1882, went personally and alone to the office of the surrogate of Chautauqua county, and there made petition and her account, drawn by one of his clerks, on settlement of her accounts as administratrix, and on that day such surrogate, without the service of any citation upon her minor children, and without any special guardian being appointed to protect their rights, made a decree substantially allowing the several items above named, paid by her for taxes, repairs, insurance and upon said mortgage, and after allowing her for payment of other debts of the deceased and funeral expenses and expenses of administration, found remaining in her hands from the personal property of the estate the sum of $120.69 only.

Petition was recently made by one of her daughters, now married, of the age of twenty years, for an accounting herein by the administratrix, and to set aside such former accounting as irregular and void on the grounds that no notice was served upon the children and no special guardian was appointed for them and for other alleged errors; and upon the service of a citation issued upon such petition, the administratrix appeared and filed her petition for an accounting, and all the parties interested were duly served with citations, and upon the return day thereof a special guardian was appointed for such of the heirs as were minors, and all parties interested appeared and consented that such accounting before said former surrogate should be opened and the same was opened and set aside, and thereupon said administratrix filed her account and the said contestants objected to the above-named items upon the grounds that the administratrix had no legal right to pay same from the personal property of the estate for the benefit of the real estate, and that the surrogate’s court has no jurisdiction to allow them. It was claimed on the part of the administratrix, the petitioner, that she was general guardian of said minor children at the time such payments were made, and that she paid same as such guardian. I am strongly of *67the opinion that the disputed items should be credited to the administratrix in this very exceptional case, under the authority of the surrogate to settle estates and make distribution. The strongest claims of equity and justice would seem to require that statutes passed to protect estates and the rights of the widow and minors should not be so construed as to wreck estates or do injustice to any one. There is no doubt but the administratrix acted in perfect good faith in all she has done, acting under the approval of the surrogate to whom she applied for direction and advice.

The learned counsel for the contestants strongly contend that the administratrix, although being guardian for her minor children, had no legal right to pay these disputed claims from the personal property of the estate, and that the surrogates court has no jurisdiction to allow them to her in this accounting; that to do so would be an attempt to settle the account in this proceeding as between the guardian and her wards, and would be void for want of jurisdiction, and cites the following authorities to sustain their position: 1 R. S., 749, § 4: *Cornwell*v. Deck, 2 Redf., 87; *Willcox*v. Smith, 26 Barb., 316; *Diaper*v. *Anderson,*37 id., 168; Code, § 2847; *Matter of Hawley,*104 N. Y., 250; 5 N. Y. State Rep., 620; *Ferrin*v. *Myrick,*41 N. Y., 315; *Schmittler*v. *Simons,*101 id., 554; *R. R. Co.*v. *Gilbert,*44 Hun, 204; 8 N. Y. State Rep., 215.

I am of the opinion from a careful examination of these authorities, that while they confirm the long established rule that, generally, an administrator has nothing to do with the real estate of the intestate, yet they do not appear to dispose of the real issue involved in this accounting, under the exceptional state of facts disclosed by the evidence herein. In no one of the cases cited was the administrator while making repairs, paying taxes and mortgages upon the real estate of the deceased, at the same time acting as general guardian of his wards being the sole heirs-at-law of the intestate.

This is not an attempt to settle accounts as between the guardian and her wards, over which the surrogate’s court could not entertain jurisdiction, as was the case in *Banks*v. *Taylor,*10 Abbott’s Pr., 199.

The case of *Shepard*v. *Stebbins,*48 Hun, 247 ; 17 N. Y. State Rep., 900, decided by the general term of the supreme court, fourth department, in 1888, appears to be squarely in point the facts in which case are very similar to those in this proceeding; and the conclusions of law, as stated in the opinion of the court, written by Martin, J., conserve equity and justice, and are clearly set forth in the head note of the case, as follows:

> “ When an administrator, who is also general guardian of the children of an intestate, with the approval and consent of the other general guardians of the children, in perfect good faith, and with .the honest and earnest purpose of promoting the welfare, comfort and best interest of their wards, and of their estate, determines to keep the family of children together upon the homestead farm of the intestate, and expends certain sums of money received by him, as administrator, in the payment of taxes on the farm, and for *68material and labor employed in the care of, and in making repairs ■to the real estate, and in the support and education of the children, and the expenditures so made are such that if permission had been •asked of the court to make the same such authority would have "been given, the acts of the administrator and guardian in thus expending the money belonging to the estate of the inteslate will be approved, and his accounts will be allowed and passed by the court.

> “ The claim for the support and maintenance of the family of the .administrator should not be disallowed because a separate account was not kept of such expenditures made for each of the infant ■children, as such an account will be quite impossible where the ¡children are all given a common home, and .the necessaries for all ■are supplied from one common fund.”

Thec conclusions reached by .the supreme court in the above case are well sustained bjr the following authorities: 3 R. S., 7th ed., 2347, § 20; 2 Perry on Trusts, § 607; *Torry*v. *Black,*58 N. Y., 185; *Emerson*v. Spicer, 46 id., 596; *White*v. *Parker,*8 Barb.. 52; *Copley*v. *O'Niel,*39 How., 41; *Hyland*v. *Baxter,*98 N. Y., 610; S. C., 42 Hun, 9; 5 N. Y. State Rep., 219; *Haight*v. *Brisbin,*100 N. Y., 222, and by other cases cited in opinion in *Shepard*v. *Stebbins.*

I direct decree allowing the account of the administratrix as presented and filed, except as to the item of $100, for money lent, not proved, and allowing claim for $385 for repairs at $320, costs .to be paid out of the estate.