FRAENZNICK V. MILLER.

tive share is not disputed or has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same" (Code, § 2743).

I do not share the confidence of the commissioners, that these provisions have been so skillfully worded as to leave no room for future contention. But my own interpretation of them, and of their application to the cases now before the court, is as follows:

First. By this limited grant of authority to determine all questions concerning "debts, claims and distributive shares," when their validity "is not disputed or has been established," it is intended that whenever the executor or administrator shall dispute the validity of a debt, claim or right to a distributive share, the jurisdiction of the Surrogate to adjudicate upon it is straightway suspended until such debt, claim or right shall have been established by the judgment of some competent tribunal, and of some tribunal, of course, other than the Surrogate's court itself.

Second. The term "debt, claim or distributive share," as used in section 2743, is designed to comprehend every species of claim or demand against a decedent's estate, which may be or can be preferred by any individual belonging to any of the classes of persons previously enumerated in that section, i. e., by any creditor, or legatee, or next of kin, or husband, or wife of decedent, or by the assignee of any one of such persons. Indeed, the word "debt," of itself, must be deemed to have a significance almost as broad as this, if we are to heed its definition in section 2514. "The word debts," says that section, "includes every claim and demand, upon which a judgment

FRAENZNICK V. MILLER.

for a sum of money, or directing the payment of money, could be recovered in an action."

Third. That a dispute about the validity of any such debt, claim or distributive share, whose payment is sought to be obtained or secured at a final accounting, is a dispute about whether the right to such debt, claim or distributive share, at the time, exists.

Fourth. That, accordingly, whenever one, as next of kin or legatee, claims, upon a final accounting, a share in the decedent's estate, and the accounting party disputes his claim, and interposes against it a release or an assignment, which is assailed by its maker as invalid and ineffectual by reason of fraud, a contingency has arisen which requires the Surrogate, in obedience to section 2743, to hold in abeyance his decree of distribution, so far, at least, as concerns that interest in the estate to which such assignment or release relates, until the rights of the parties can be determined in another forum.

If the provisions of the Revised Statutes were still in force, it might be claimed, with some show of reason, that the Surrogate's right to determine a controversy, between an accounting executor or administrator and a person claiming as legatee or next of kin, touching the validity and effect of a release or an assignment to the accounting party himself, might be defended as within the spirit, if not the letter, of recent decisions of the Court of Appeals. See, for example, the cases of Kyle v. Kyle (67 N. Y., 408); Shakespeare v. Markham (72 N. Y., 400); Boughton v. Flint (74 N. Y., 476); which lend some support to the notion that whatever claims of interest in an estate its executor or administrator sets up may be passed upon by the Surrogate.

FRAENZNICK V. MILLER.

But section 2739 of the Code seems to have established certain restrictions in this regard which are too plain to be overlooked. It provides that a contest between the accounting party and any other party in interest may be determined by the Surrogate, when it relates to a debt alleged to be due by such accounting party to the decedent, or by the decedent to the accounting party, or when it relates to property of the estate to which the latter lays claim. The provision is manifestly too narrow to include such cases as the present.

V. SHALL THE CONTESTANTS' OBJECTIONS BE CONSIDERED?

Having no power to pass upon the validity of either the release in the Brown estate, or the assignment in the estate of Bauer, what disposal ought I to make of the objections which have in each case been interposed? It is insisted by the accounting parties that the claims of the objectors to appear as such should be denied, and that the proceedings should be conducted to a final decree, as if their objections had not been filed. But would not such a course imply an assumption that the instruments whose validity is attacked are in fact valid? In other words, would it not practically involve just such a determination of their validity as the court has no right to make?

It seems to me that one or the other of two courses should be taken for protecting the rights of all parties in such controversies as these. Either the inquiry into the correctness of the accounts should be postponed, until an adjudication is had, in the matter as to which the court lacks jurisdiction, or, if the inquiry is suffered to pro

LEDWITH V. LEDWITH.

ceed, every person who claims a share or an interest in the estate should be allowed to take part therein, despite the fact that he is alleged to have assigned or released such share or interest, provided that he interposes allegations of fact disputing the validity of such assignment or release, and that, but for such assignment or release, he would be entitled to such interest or share (Thomson v. Thomson, 1 Bradf., 24; Burwell v. Shaw, 2 Bradf., 322; Dickson's Estate, 11 Philadelphia, 86; Wistar's Estate, 12 Philadelphia, 48; Kenny v. Jackson, 1 Hagg. Eccl., 105; Greene v. Day, ante, 45; Giles v. de Talleyrand, ante, 97; Buchan v. Rintoul, 70 N. Y., 1).

In

Which of these two courses should be pursued, in any given case, must depend upon a variety of circumstances that need not be here considered or enumerated. both of the present proceedings, I have decided to permit the contests to go on at once.

Orders may, therefore, be presented for submission, to a reference, of the accounts and of the objections thereto.

NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.―January, 1883.

LEDWITH V. LEDWITH.

In the matter of the application of JOSEPH M. LEDWITH for the appointment of a general guardian of his person and of his property.

Code Civ. Pro., § 2826 does not confer upon an infant of fourteen years or upwards, plenary authority to emancipate himself, at pleasure, from.

LEDWITH V. LEDWITH.

parental control. The provision of that section, that a general guardian of such an infant, appointed upon his application, "must be nominated by the infant, subject to the approval of the Surrogate," affords no support for the claim that such an infant, having no testamentary or general guardian, has an absolute right, even though his parents are living, to demand from the Surrogate's court the appointment of a guardian, and of whatever guardian he may be pleased to nominate, provided only that the nominee be, in the Surrogate's judgment, a proper person to execute the trust. The Surrogate has a discretion to determine whether the interests of the infant will be promoted by the appointment of any guardian.

Code Civ. Pro., § 2823, requiring that, if either parent be known to be living, and be not the nominee, the petition must set forth the circumstances which make the appointment of another person expedient," implies that, unless such expediency be proven, no such other person should receive letters.

A corporation may receive letters of general guardianship of an infant's property.

APPLICATION for the appointment of a general guardian of an infant's property and person. The facts appear sufficiently in the opinion.

BOARDMAN & BOARDMAN, for petitioner.

EDWIN MORE, for Thomas A. Ledwith, opposed.

THE SURROGATE.-The petitioner, who has recently become fourteen years of age, and who has both real and personal estate, sets forth circumstances which, as he claims, render expedient the appointment of a guardian, for both his person and his property. His father, who is his only relative residing in this county, is declared by him to be an unsuitable person to receive the appointment, and he, accordingly, asks that the Union Trust Company of New York be granted letters, as the guardian both of his property and of his person. A supplemental petition so amends the first as to nominate one Mary P. Devlin in the latter capacity.