#### Matter of the judicial settlement of the accounts of David Hawley as testamentary guardian and trustee.1

*(Court of Appeals,*

*Filed February 1,*1887.)

1. TRUSTS — TESTAMENTARY TRUSTEES — HOW CREATED.

To constitute a testamentary trustee, it is necessary that some express trust be created by tbe will. Merely calling an executor or guardian a trustee does not make him such. Every executor and every guardian is, in a general sense, a trustee ; but not in tbe sense in which that term is used in courts of equity and in the statutes.

2. Surrogates* court — Jurisdiction must be shown — Powers.

A surrogates’ court is a creation of the statute, of inferior and limited jurisdiction. Those claiming under the decree of a surrogate must show affirmatively his authority to make it, and the facts which give him jurisdiction. In respect to accountings by testamentary trustees or guardians, a surrogate takes no incidental powers or constructive authority by implication which is not expressly given by statute.

3. Same — Settlement of guardian’s account — When it has jurisdiction.

An attempted judicial settlement by a surrogate of the accounts of a guardian appointed by the surrogate, or a testamentary guardian made either before or since the adoption of the Code of Civil ^Procedure, but *while the guardianship continued*is void for want of jurisdiction *(following*Diaper v. Anderson, 37 Barb. 168, *statutes collated and discussed.)*

4. Guardian — Fraud — How proved — Evidence.

The intentional withholding from the surrogate by the guardian of the *621information that he had received commissions on the principal on a previous accounting would be fraud to obtain their allowance the second time by concealing the fact that he had previously received them. Questions ■ put to him on his examination before the surrogate although not calling for facts, which would have positively proved such a fraud, yet tended in that direction, were proper and should have been allowed.

5. Same — Commissioners — WnEN fixed.

Whether the guardian is entitled to charge commissions, as guardian on the principal, notwithstanding that he received them as executor mot *decided.*Whatever commissions are properly alowable, should be determined on the final accounting aceeeding to the law existing at that time.

Appeal from an order of the supreme court, general term, second department, affirming an order of the Westchester county surrogate’s court, allowing commissions to a guardian and trustee on his final accounting.

*Chas. E.*Tracy, for appl’t; *James C.*Carter, for resp’t.

Reversing 36 Hun, 258.

Rapallo, J.

Isaac M. Singer died July 23, 1875, leaving a will dated July 16, 1870, whereby, after making certain legacies, he divided all his residuary estate, real and personal, into sixty equal parts, and devised and bequeathed six of said parts, being one-tenth of his estate, to his son, Adam Mortimer Singer, for his sole and separate use and benefit.

Adam Mortimer Singer was at the date of the decease of the testator an infant of the age of about twelve years. The testator directed that should he continue to hold, at the time of his decease, the stock of the Singer Manufacturing Company, such stock should, in no event, be sold but should be divided by his executors as near as might be in the proportions indicated in the will. He appointed David Hawley and Charles M. Kellar executors, and appointed his executors guardians and trustees of the estates of such of his legatees as should be under the age of twenty-one years at the time of his decease, to continue such guardians and trustees until said legatees should respectively arrive at that age. The will, however, contained no trust, but all the property devised and bequeathed was given directly to the legatees named.

The will was admitted to probate by the surrogate of Westchester county on the 10th of January, 1876. The principal item of the property left by the testator was forty-one thousand eight hundred and one shares of the capital stock of the Singer Manufacturing Company, the value of which was appraised at 1175 per share, amounting in the whole to $7,315,000, of which the share of Adam M. Singer was $731,500.

David Hawley qualified as executor, and as such rendered his account to the surrogate of Westchester county on the 12th of January, 1877, and petitioned for a final settlement of his account as executor. Citations were duly issued and a decree was made by the surrogate on the 31st of October, 1877, finally *622settling such account. The executor was charged with $9, 651,-•521.85 of assets, including the forty-one thousand eighthundred and one shares of the stock of the Singer Manufacturing Company, amounting to $7,315,000. He was credited with $1,546,-636.54 for expenses and payments, leaving in his hands the sum of $8,104,885.31. Out of this balance he was allowed $96,255 for commissions for receiving and paying out the whole principal. The several distributive shares of the legatees were ascertained and he was directed to retain and hold in his hands as testamentary guardian and trustee of Adam M. Singer, and to be accounted for by him as such testamentary guardian and trustee, his share of the cash assets remaining in his hands, and also one tenth of the stock of the Singer Manufacturing Company left by the testator, until said Adam M. Singer should become of age.

In December, 1878, said Hawley presented to the surrogate of Westchester county his account as testamentary guardian and trustee of Adam M. Singer, in which he charged himself with the stock and money found to be in his hands by the decree entered by the surrogate on his account as executor, and also all the dividends and interest subsequently received, and he applied to said surrogate for a final settlement of such account. A citation was issued to Adam M. Singer, who was then still an infant, and residing in Europe, and a special guardian was appointed for him for the purpose of taking care of his interest in that proceeding. A decree was afterward entered by the surrogate on the 30th of December, 1878, purporting to finally settle and allow said account; and the guardian was by said decree again allowed full commissions for receiving and paying out the whole principal received by .him for said infant, which was found to be $1,040,600, the commissions amounting to $10,581. The decree purported to finally discharge said Hawley from all accountability, except for the 41,800 shares of stock and the United States bonds then held by him. In December, 1880, the said Adam M. Singer being still an infant, said Hawley applied again to the surrogate for a judicial settlement of his accounts, as testamentary guardian and trustee, from the date of the last accounting, and the passing of the same by the surrogate, in December, 1878. He presented his account, which commenced by charging himself with the balance due from him December 30,1878, being $1,211,344.44. This account did not, on its face, disclose the fact that he had already received commissions, first as executor, and again as testamentary guardian, on the principal of his ward’s estate. A guardian *ad litem*was appointed for him by the surrogate on this last accounting, and it is stated in one of the affidavits of Mr. Hawley that the guardian who represented him on the second accounting was a different person from the one who repre*623sented him on tbe former accounting. On this last accounting a decree was made, on the tenth of January, 1881, judicially settling his accounts up to that time. By this decree Mr. Hawley was again allowed full commissions for receiving and paying out the whole principal of his ward’s estate, including the stock of the Singer Manufacturing Company, which commissions amounted to the sum of $12,288.

Adam M. Singer having become of age on the twenty-fifth of July, 1884, Mr. Hawley, in October of that year, presented a petition to the surrogate for a judicial settlement of his accounts as testamentary guardian and trustee, and asked to be discharged from all liability as such. On the hearing of this petition, Mr. Singer appeared by counsel, and objections were filed to the accounts rendered by Mr. Hawley. The account, as in the last proceeding, began by charging Mr. Hawley with the balance found in his hands by the decree of January 10, 1881; and it was objected on the part of .Mr. Singer that the balance was less than was properly chargeable by Mr. Hawley; that he had, without warrant of law, retained commissions upon the 41,800 shares of the -Singer Manufacturing Company’s stock; that he had also retained commissions upon the principal for which he had accounted on the accounting of December 30, 1878, and likewise upon the principal for which he had. accounted on the tenth of January, 1881; and that the balances had been improperly brought down by reason of such acts.

On the hearing of these objections before the surrogate, the decrees upon the former accountings were relied upon by Mr. Hawley as conclusive on the question of his right to the commissions charged therein ; and thereupon an amendment of the objections was asked for and granted, by which amendment the contestant claimed that the cash balance brought down was produced by means of deductions from moneys belonging to the estate, for commisskms allowed to the guardian and trustee by the court on the two former accountings, and that said two decrees were without the jurisdiction of the surrogate to grant, so far as the matter of commissions was concerned, and were obtained by misrepresentations on the part of said guardian and trustee, and those representing him, and that the matter of the commissions, as allowed by said decrees, was never, in fact, judicially investigated or determined by the surrogate. Under these objections, the contestant asked Mr. Hawley whether he did not draught the decree; whether there was any contest by the special guardian on the first accounting in respect to the amount of commissions; whether there was, in fact, any argument or taking of evidence in regard to that matter. The same question was asked in regard to the second accounting, and whether the. fact was made known to the surrogate upon the second accounting, when the matter of the computation of commissions was on *624band, tbat Mr. Hawley bad already received full commissions upon the same principal fund for wbieb be at tbat time asked for another allowance of full commissions. These questions were severally objected to on the part of Mr.' Hawley, on the ground tbat they were immaterial, irrelevant, and incompetent, and all the objections were sustained, and exception taken. The decrees of December 30th and January 10th being offered in evidence, Mr. Hawley was further asked whether, on either one of the occasions when the decrees were entered, any statement or representation was made to the court in regard to the contents of the will of the testator respecting the shares of stock of the Singer Manufacturing Company. This question was objected to and excluded. The surrogate then proceeded to finally settle the accounts of the guardian, taking as the basis of the accounting the balance found due upon the settlement of January 10, 1881. He allowed to the guardian no commissions on the principal of the estate, but only on such increase as had come into his hands subsequent to the last accounting of January 10,1881, which commissions amounted to about §3,000 ; and he delivered an opinion, reported in 3 Dem. 591, in which he conclusively showed that Mr. Hawley was not entitled to charge, as, guardian or trustee, commission on the principal of his ward’s estate more than once, — a proposition too plain for discussion.

The surrogate, in excluding the testimony offered by the contestant for the purpose of impeaching the former decrees, expressed the opinion that it was an endeavor to do indirectly what the contestant had attempted to do directly: referring to an application which the contestant had made to open the decrees of December 30, 1878, and January 10, 1881, which he had denied on the ground of want of power, and which was afterwards passed upon by this court under the following circumstances : While the accounting of 1884 was in progress, the contestant presented a petition to the surrogate praying that the decrees of December 30,1878, and January 10, 1881, might be set aside. That petition set forth the former accountings of Mr. Hawley as testamentary guardian, and alleged that the allowances of commissions made were erroneous, but made no charge of fraud or misrepresentation in procuring the decrees. It simply claimed that the allowances of Commissions were erroneous, irregular, without warrant of law, and beyond the jurisdiction of the surrogate to grant. The surrogate denied the petition to vacate these decrees, on the ground, as stated in his opinion, that the case was not within section 2481 of the Code, as the proceedings were instituted before the Code of Civil Procedure went into effect; and that he had no power to grant a rehearing for errors of law, there being no charge of fraud. This orderw as reversed by the general term of the supreme court, on appeal, the ground taken by the general term being that the decrees *625of the surrogate were void, for want of jurisdiction. When the case came before this court, it adopted the view of the surrogate, that the only mode of review of the errors of law was by appeal; and that, there being no fraud or clerical error charged, the application was not authorized by section 2481 of the Code of Civil Procedure. The judgment of the general term was therefore reversed, this court holding that the decrees should not have been vacated upon mere allegations in a collateral proceeding that some of the determinations of the surrogate were erroneous as matter of law, without any proof, or even a suggestion in the petition, that any fraud or clerical error had been committed, or -the existence of evidence newly discovered, or any other cause rendering such an order proper under section 2481 of the Code of Civil Procedure. With regard to the objection that the decrees were void for want of jurisdiction, this court said in its opinion that, if the views suggested in that respect by the general term were correct, it was quite unnecessary to vacate the decrees for that reason, as they would not constitute a bar to any subsequent investigation .of the guardian’s accounts, but would be void. The question whether the decrees can now be assailed, when set up as a bar to the objections made by the contestant to the double commissions retained by the guardian, is therefore unaffected by our decision in the previous case, and it is open to the contestant to attack the decrees, thus set up against him, either on the ground of fraud or want of jurisdiction. The charge of fraud in the objections, as amended, is not specific and is very general, but the exclusion of the evidence does not seem to have been placed upon the ground of any want of formality in the objections, and it is questionable whether it was necessary to make specific objections to the decrees for the purpose of avoiding them by proof of fraud, when they were set up against him. *Mandeville*v. Reynolds, 68 N. Y. 528, 543.

It is very evident from the subsequent action of the surrogate upon the subject that, had the facts been called to his attention, he would not have allowed the commissions on the principal which were allowed for the second time in the accounting of January 10, 1881, for he disallowed them in the final accounting of 1884, although if they were properly allowed in 1881, it would have been proper to again repeat them in 1884, and the same reasons for which they were disallowed in 1884 existed against their allowance in 1881. The guardian knew that he had received these commissions on the accounting of December 30, 1878, and if he knew that he was not entitled to receive them again on the accounting of January 10, 1881, and intentionally withheld from the surrogate the information that he had received them on the previous accounting, no one can doubt that it would have been a fraud to obtain their allowance the *626second- time by concealing tbe fact that he had previously received them. The questions put to him on his examination before the surrogate in 1884, although not ’calling for facts which would have positively proved such a fraud, yet tended in that direction, and. were, in my judgment, proper. It is, perhaps, possible to conceive that the guardian may have supposed himself entitled to commissions upon the principal every time he should render an intermediate account, which might be every year, and, therefore, was free from any actual fraudulent intent in claiming them in 1881. That was a question to be determined on.all the proofs after they were in, but was no ground for excluding the evidence. His insisting on retaining the commissions after he must have been advised by the subsequent proceedings, of the impropriety of thus duplicating and triplicating commissions on the principal, and his strenuous resistance even to an investigation of his right to them cannot meet with our commendation in a controversy between guardian and ward.

But it is not necessary to sustain the proposition that the decrees were properly attacked on the ground of fraud in obtaining them, for there is another and conclusive ground for alleging error in the decree now appealed from.

It seems to have been assumed throughout the proceeding that Mr. Hawley was a testamentary trustee, and that the provisions in regard to accountings by testamentary trustees were applicable to him.

We think the assumption unfounded. To constitute a testamentary trustee, it is necessary that some express trust be created by the will. Merely calling an executor or guardian a trustee does not make him such. Every executor and every guardian is, in a general sense, a trustee, for he deals with the property of others confided to his care. But he is not a trustee in the sense in which that term is used in courts of equity and in the statutes. *Wood*v. Brown, 34 N. Y. 337; *Cleveland*v. Whiton, 31 Barb. 544.

It is said by Story, (2 Eq. Jur., § 1330) that an attempt has been made to sustain the jurisdiction of the -court of chancery over guardians of infants “ by considering guardianship as in the nature of a trust, and that, therefore, the jurisdiction has, a broad and general foundation, since trusts are the peculiar objects of equity jurisdiction. But this has been thought an over-strained refinement, for although guardianship may properly be denominated a trust, in the common acceptation of the term, yet it is not so in the technical sens® in which the term is used by lawyers, or in the court of chancery.”

As before remarked, the will of the testator does not purport to create any trust whatever. Nothing is bequeathed to his executors upon any trust, but his bequests are made directly to *627the legatees named, in every instance. He directs his executors to divide his residuary estate, and *fay over*the several parts or portions as directed. He bequeaths to his son, .Adam M. Singer, six of the sixty parts hito which he directs his residuary estate to be divided, for his sole and separate use, benefit and behoof forever. He prohibits his executors from selling his stock in the Singer Manufacturing Company, but creates no trust in relation to it, and directs that it be divided by them in the necessary proportions directed, as nearly as may be, contribution being made, if necessary, for division. He then appoints his executors, guardians and trustees of the estates of such of the legatees as are under twenty-one years of age at the time of his death, to continue such guardians and trustees until such legatees shall respectively arrive at full age. As before observed, there being no trust declared in the will, the guardian became entitled to the property by virtue of his office of guardian, and the addition of the term “ trustee,” it not being connected with any trust, had no effect upon the character in which he took the infant’s share.

A surrogate’s court is a creation of the statute, of inferior and limited jurisdiction. Those claiming under the decree of a surrogate must show affirmatively his authority to make it, and the facts which give him jurisdiction. In respect to ac-countings by testamentary trustees „or guardians, a surrogate takes no incidental powers or constructive authority by implication, which is not expressly given by statute. *Corwin*v. Merritt, 3 Barb., 341; *Wood*v. Brown, 34 N.Y., 342; *Craig*v. *Craig,*3 Barb., Ch. 76; *Re*Wadsworth, 2 *id.*381; *Re*Andrews, 1 Johns. Ch. 99;*Bulkley*v. *Van*Wyck, 5 Paige, 536.

Under the Revised Statutes, surrogates had no jurisdiction to settle the accounts of testamentary trustees.

In the general enumeration of their powers in 2 Revised Statutes, 220 (§ 1, subd. 3) they are declared to have jurisdiction to control the conduct and settle the accounts of executors and administrators only. An executor, although a trustee in a general sense, is not a trustee within the meaning of the statute *(Wood*v. Brown, 34 N. Y., 337; *Cleveland*v. Whiton, 31 Barb., 544) and the general powers of the surrogate do not embrace jurisdiction over testamentary trustees. *Savage*v. *Olmstead,*2 Redf. 483; *Furniss*v. Furniss, *id.*497. To establish this jurisdiction particular statutes must be resorted to.

The first statute giving power to surrogates to settle the accounts of testamentary trustees was the act of 1850 (Laws of 1850, chap. 272) which amended 2 R. S. 220, § 1, subd. 3, so as to provide that any trustee appointed by any last will and testsv ment, or appointed by competent authority to execute any trust created by any last will and testament, or appointed by competent authority to execute any trust created by any last will and *628testament might from time to time render and finally settle his accounts before the surrogate of the county in which the will was proved.

This act was amended by chapter 115 of the Laws of 1866, by inserting a provision that on all such accountings by trustees, the surrogate should allow to the trustee or trustees the same commissions as were allowed by law to executors and administrators.

Thus far there was no provision authorizing the settlement of the accounts by testamentary guardians. The only guardians over whom surrogates had jurisdiction were guardians, appointed by the surrogate. Provision was made for account-ings by guardians thus appointed, by 2 Revised Statutes, 152, §§ 11, 12; and by Laws of 1837, chap. 460, §§ 54, 57, 58.

By section 57 guardians appointed by surrogates’ courts were required annually, after their appointment, to file in the office of *the'surrogate*who appointed them an inventory and account-under oath.

By section 58 the surrogate was required to file, and in the month of February in each year to examine, all such accounts, and vouchers as should have been filed for the preceding year. By section 60 the surrogate was empowered to require a further-account, or, if dissatisfied, to institute proceedings for the removal of the guardian. But there was no provision for the judicial settlement of-their annual accounts; and it was held in *Diaper*v. Anderson, 37 Barb., 168, that the statute did not contemplate a settlement of the annual accounts, but that they were merely intended to inform the court as to the manner in which the guardian was discharging his trust; and it was held in that case that there was no provision in the statutes for the judicial examination and settlement of a guardian’s accounts, during the continuance of the guardianship, and that there were only two cases in which the surrogate had jurisdiction to judicially settle the account of a guardian at the instance of the guardian: and those were where he was permitted to resign his trust, or was superseded, and a new guardian appointed, or where the infant had arrived at his majority. See 2 Rev. St. 152, §§ 11, 12, as amended by act of 1837. In *Seaman*v. Duryea, 11 N. Y. 324, the guardian had been superseded, and was required to pay the balance in his hands to his successor. See S. C. 10 Barb. 525.

By Laws 1867, ch. 782, jurisdiction was for the first time conferred on surrogates to settle the accounts of testamentary guardians. That act (section 1) gave jurisdiction to surrogates to *compel testamentary*trustees *and guardians*to render accounts of their proceedings in the same manner as executors and administrators, and *guardians appointed by such surrogates,*were then required to account. By chapter 482 of the Laws of 1871 *629this act was amended by authorizing tlie surrogates to require testamentary trustees *and guardians*to give security, and to remove them in the same manner as provided by law for requiring security from and removing executors, administrators, *or guardians appointed by surrogates.*The Code of 1880 has substantially re-enacted these provisions, and added some that are new, but has carefully distinguished between testamentary *trus*tees, testamentary guardians, and *guardians appointed by surrogates,*and provided a distinct system as to accountings by each. Chapter 18, tit. 4, § 2472, declares the general jurisdiction of surrogates’ courts, in subdivisions, in the same form as the Ré-vised Statutes, (2 Rev. St. 220, § 1,) but with additions, and omitting subdivision 8, which related to the admeasurement of dower. Subdivision 7 gives jurisdiction over guardians of infants “ and hr the cases *specially prescribed by law,*to direct and control their conduct, and settle their accounts, and concludes with the provision that “ this jurisdiction must be exercised *in the cases*and in *the manner*prescribed by statute.” Title 4 of the same chapter, art. 2, provides for accountings by executors and administrators. Title 6 relates to testamentary *trustees,*and provides for the manner of their accounting. Title 7, art. 1, 2, treats of guardians *appointed by surrogates,*and ac-countings by them. Article 8 is entitled “ Guardians *Appointed by Will or Deed”*and contains provisions for accountings by them, which differ materially from the provisions for the accounting of testamentary trustees.

The same distinctions which which were made in the Revised Statutes, and the amendments thereto, between *guardians*and testamentary *trustees,*and between guardians *appointed by surrogates*and guardians *appointed by will or deed,*are preserved in the Code of Civil Procedure. By section 2853, where a guardian of an infant’s person or property has been appointed *by will or deed,*the infant, or any relative on his behalf, may apply to the surrogate of the proper county to require the guardian to give security; and by section 2855, on the like application, the surrogate may, at any time',_ in his discretion, *compel such*a guardian to render and file an inventory and account in the same form as those required to be filed annually by guardians *appointed by the surrogate’s*court as prescribed in article 2 of the same title, and the surrogate may also order such inventory and account to be filed in the month of January in each year thereafter. Sections 2842 to 2845 are applied to these intermediate or annual accounts of *testamentary guardians,*but there is no provision for issuing citations on such accountings, or for the judicial settlement of such intermediate accounts, or the allowance of commissions on such accountings. By section 2844, the surrogate is required, in the month of February in each year, to examine such accounts *for the purposes specified in the*
      *630
      *Code;*which are (section 2845) that if, on such examination, the interests of the infant appear to require it, the surrogate may order a further account, or may institute proceedings for the removal of the guardian. The provisions of the Code are the same, in substance, as those of the previous statutes, which were considered in the before-cited case of *Diaper*v. *Anderson,*37 Barb., 168, and which were therein held to be intended merely to inform the court as to the manner in which the guardian was discharging his trust, and not to confer jurisdiction upon the surrogate to judicially settle the guardian’s accounts *while' the guardianship continued.*The provisions of the Code appear to be framed with the view of harmonizing with that decision, and extending the jurisdiction of surrogates to the accounts of testamentary guardians, subject to the same principles which under previous statutes governed their jurisdiction over the accounts of guardians appointed by surrogates. Section 2856 empowers the surrogate’s court to *compel*a judicial settlement of the account of a testamentary guardian in any case in which it may *compel*a judicial settlement of the account of a guardian appointed by it; and section 2857 gives to the decree, made upon the judicial settlement of' the account of a testamentary guardian, *as prescribed in this article,*(article 3, tit. 7, ch. 18,) the same force as a judgment of the supreme court.

The only provisions authorizing the judicial settlement by the surrogate of the accounts of a guardian, whether appointed by will or by the surrogate, are contained in sections 2847, 2848, and 2849 of article 2 of title 7, and the last above quoted section 2857 of article 3. Section 2847 prescribes that a petition for the judicial settlement of a guardian’s account may be presented to the surrogate in three cases only : (1) By the ward after he has attained his majority; (2) by the executor, etc., of a ward who has died; (3) by the guardian’s successor. Section 2848 prescribes that a petition for the judicial settlement of the accounts of a general guardian of an infant’s *person*may be presented in certain cases by the general guardian of the infant’s *property ;*and section 2849 provides that a general guardian may petition the surrogate’s court for a judicial settlement of his accounts, and a discharge from his liabilities, in any case where any *other*person is authorized by the' *two next preceding sections*to petition for a judicial settlement of such accounts. Section 2857 applies these sections to *testamentary*guardians; and it is thus plain that no jurisdiction is conferred upon the surrogate’s court to judicially settle the accounts of a testamentary guardian, either on his own application, or that of any other person, except in one of three cases mentioned in section 2847, viz. (1) When the ward has attained his majority ; (2) when he has died; (3) when the' guardian has been superseded by a successor.

*631The rule declared in *Diaper*v. *Anderson,*37 Barb. 168, therefore, still prevails ; and an attempted judicial settlement by a surrogate of the accounts of a guardian appointed by the surrogate, or a testamentary guardian, made either before or since the adoption of the Code of Civil Procedure, but *while the guardianship*continued, is void for want of jurisdiction. See *Bulkley*v. *Van*Wyck, 5 Paige, 536, 538.

There is good reason for this distinction between testamentary “ guardian” and testamentary “ trustee.” A trust in a will may endure during the whole life of a beneficiary, and there may be reasons for judicially passing and settling the accounts of the trustees from time to time. But a guardianship necessarily terminates with the minority of the infant, and there is no reason for judicially settling the accounts of the guardian during the infancy of the ward, so as to conclude him. When the infant becomes of age, or the guardianship is otherwise terminated and a new guardian is appointed, or the infant dies, is the proper time for judicially settling the original guardian’s account.

The result is that the decrees of December 30, 1878, and January 10, 1881, had no force or effect as adjudications, and all objections to the commissions and other charges in these accounts are open to the contestant. Whatever commissions are properly allowable should be determined, on the final accounting, according to the law existing at that time ; and if in view of sections 2738, 2850, 2856 of the Code of Civil Procedure, and 5 N. Y. 430, and note to section 2738, a question which we do not now decide the guardian is entitled to charge commissions, as *guardian,*on the principle, notwithstanding that he received them as *executor,*we think they are allowable upon the stock of the Singer Manufacturing Company.

The judgment of the general term and the decree of the surrogate should be reversed, and the matter sent back to the surrogate for a rehearing, without costs to either party.

All concur.