In re Putney

tenance of said minor. It does appear, however, that within a comparatively short time after the receipt of the moneys belonging to this estate the guardian applied the same in liquidation of his own indebtedness and for his own individual benefit. No annual report appears to have been filed by the guardian pursuant to the requirements of section 2842 of the Code of Civil Procedure, prior to the year 1892. On the 9th day of January, 1893, he did file in the office of the surrogate a report of his proceedings as such guardian for the year 1892, in. which he states that he had received since his appointment the sum of $150, and that the same then remained in his hands. On the 12th day of January, 1894, he filed his report for the preceding year, in which he states that he had received $1,026.88, that he had loaned upon a note $170 thereof, and that the balance then remained in his hands. On the 6th day of February, 1895, he filed a report for the year 1894, in which he states that he had received $1,026.88; that he had loaned $170, as above stated, and that the balance thereof still remained in his hands; and in the year 1896 he filed a further report, bearing date and verified on the 29th day of January, 1896, in which the guardian states that he had received the sum above named, to wit, $1,026.88, and that he had loaned said sum of $170, and also charged himself with interest on such note to the extent of $8, but not stating in the last-mentioned account that he still retained the funds in his possession. No accounts subsequent to the one last referred to have ever been filed by the guardian, and in none of the accounts filed by him has he reported or made any charge of any expenses or disbursements incurred for- the support of the minor. It appears from the evidence that in the annual reports filed by the guardian he charges himself with sums in excess of the entire amount received; that the total amount coming into his hands as such guardian belonging to the infant was $570.88. In the account filed for judicial settlement the guardian presents charges against the son for an amount which, if allowed, will more than absorb the entire estate and to this portion of the account objections are made; so that the only question raised upon this contest is as to whether the guardian should be allowed the entire funds of the estate or any portion, thereof on account of expenses incurred by him in maintaining said minor.

There is no question of the authority of the Surrogate’s Court to make such allowances, if the facts disclosed by the evidence justify the same. In the case of Hyland v. Baxter, 98 N. Y. 610 , it was held that a Surrogate’s Court on judicial settlement had the authority and jurisdiction to make an allowance on account of advancements which had been made for the support and maintenance of a minor, although no order permitting such expenditure had been procured from the Surrogate’s Court before making the same; and in that case it was held that the question of such expenditures should then be disposed of in. the same manner and having in view the same facts and circumstances as if an application had been made. So in this case the question is not one of power or authority, but one of ascertaining what should be done under all the circumstances in the case in order

to reach an equitable disposition of the matter as between the guardian and his son.

As already stated, early in the administration of the estate, the guardian appropriated the entire funds of the estate, not to meeting the expenses of the support and maintenance of the infant, but for his own individual benefit and convenience; and it is by no means apparent that at the time of making and filing the annual accounts above referred to the guardian entertained any intention to charge the infant with the expenses of his support and maintenance. The transaction has to some extent the appearance of an effort on the part of the guardian at this late day to establish a defense against the claim of his son, when, in fact, no intention existed in the mind of the guardian to make such charge at the time of the making of any expenditures ' for the infant.

The infant has no other estate than that which has come into the hands of his guardian, as above stated. He is a young man who has recently become of age, of ordinary intelligence and apparently in fair state of health, and is undoubtedly able, and during several years last past has been able, to maintain himself, or at least to contribtue toward the expense of his maintenance. After the death of his mother the infant was taken to the home of the grandmother, where he was cared for by her, without expense to the guardian, until the infant became of the age of about three years. In the meantime the guardian had married again, and the infant was returned to the guardian’s home, and from that time on supported and maintained in a manner usual and customary with people in their station of life. The guardian was a man of some means, having title to a farm in the town of Perrysburg of the value of about $3,000, and upon which there has existed for several years, and still exists, a mortgage incumbrance to the extent of $1,000. The guardian has also during several years last past derived an income to some considerable extent through his employment by a manufacturing corporation; so that, all things taken into consideration, it seems that the guardian had the financial ability to at least contribute to some extent toward the support and maintenance of his infant son. The obligation of maintaining a child rests primarily upon the parent, and this obligation includes that of education to an extent consistent with the station in life of the parties. Such was the obligation resting upon the petitioner at the time he received the moneys in question; and it becomes incumbent upon him to show affirmatively such a condition that the court, in the exercise of a reasonable discretion, can say, or should say, that the petitioner was unable to meet such obligation.

I am not satisfied from the evidence in the case that the guardian should be permitted to absorb this entire sum for his own benefit, notwithstanding the fact that he has incurred certain expenses in the maintenance and education of the minor; nor am I prepared to say, in view of the comparative situation of both the petitioner and his son, that the petitioner should now be required to account for the entire sum. I am of the opinion that, under all the circumstances, some allowance should be made from the principal of this estate to the peti

tioner on account of such care and maintenance. The said guardian should be required to pay over to his son the sum of $200 on account of the moneys received by said guardian, as above set forth.

A decree to that effect will be entered. Decreed accordingly.