Estate of Tilden. personal estate to be disposed of according to his will and codicils. They were admitted to probate by the surrogate of the county of New York on or about the 19th of July, 1869, and letters testamentary were issued to four persons named in the will as executors. Another person was added as executor early in the year 1870, and a change was afterwards made in that year by substituting one other person in place of one of the original executors who had died, and a similar change was made as to another in 1877. At the time of the decease of the testator the petitioner was near the age of eleven years, he having attained his majority on or about the 10th of December, 1880. During his minority, four accountings were held by the executors of the estate. The first in February, 1872, the second in the summer of 1874, the third in the spring of 1877 and the fourth in the spring of 1880. The petitioner claimed, in support of his applicacation, that improper charges had been made and. allowed against him on each of these accountings. He also claimed that the executors had failed to enforce the guarantee of William Tilden Blodgett of second mortgages received by them in partial settlement of a large indebtedness in favor of the estate against him. If he was probably right in the complaints made by him, ample authority was given by subdivision 6 of section 2481 of the Code of Civil Procedure, to the surrogate to open, vacate or set aside the decree, so far as that might be necessary for the further exami nation of the items to which the application was ['] directed, and upon appeal from the determination of the surrogate, the general term of the supreme court has the same power as the surrogate; and his determination must be reviewed as if an original application was made to that term. Under this authority the entire controversy presented by the petition and the answer to it, is to be considered upon the appeal VOL. VI.-2 Estate of Tilden. in the same manner in which the surrogate himself had the authority to consider it. In partial support of the allegations made, it was alleged and shown that no special guardian, or guardian ad litem, was appointed by the surrogate, to take charge of the interests of the petitioner on the first accounting. His mother had been appointed by the testator's will his testamentary guardian, but they were in Germany [] when the citation was issued on the application of the executors, and it was served probably irregularly, at least, for want of time (3 R. S. 6th ed. 102, § 76), upon himself and his mother in that country. Neither she nor any other party in any form appeared for him on the accounting to investigate or protect his interests. On the second accounting it is recited in the decree that a special guardian for this purpose was appointed by the surrogate, and a similar statement is contained in the decree on the third accounting, and on the fourth a guardian was appointed on the petition of the appellant himself. But it is alleged in his behalf that neither of these persons undertook or made any special investion of his interests. And as to the guardians on the second and third of the accountings, there seems to be good reason to believe that these charges of inattention made by him are well founded. Upon the fourth accounting the guardian has sworn that he did inform himself of all the facts bearing on the interest of the infant, for the period included in such accounting, from every source which seemed to him to be available. But that he resisted any of the charges made against his ward in the accounts has not been stated by him. Neither does the case made in his behalf, or in behalf of the executors, show that any special investigation took place at any time before the surrogate relative to the charges now complained of as improperly allowed to Estate of Tilden. the executors. It has been urged, as chapter 156 of the laws of 1874 specially conferred upon surrogates the authority to appoint special guardians on the accountings of executors, &c., that he had no power to make such appointment at the time of the first accounting of the executors. But in this position the executors do not appear to be sustained by authority. For before the enactment of this statute, it was prac tically held that the surrogate possessed the in[] herent authority arising out of the necessities of the situation, and the object to be attained by means of an accounting, to appoint a guardian ad litem to look after and protect the interest of the next of kin not appearing, who should be under the age of twenty-one years (Kellett v. Rathbun, 4 Paige, 102). The fact that no statute existed requiring the exercise of this authority did not therefore justify the omission to make such an appointment. The hearing, so far as it affected the interests of the petitioner, which [] resulted in the decree following the first account ing, was clearly irregular, and permitted the applicant to disaffirm its authority and apply for its reconsideration after he attained the age of twenty-one years. Dayton on Surrogates, 3d ed. 506-7. The first accounting extended over a period of two years and about four months, and it included a general charge amounting to the sum of $13,880.58, for one fourth of the general expenses abroad, &c., and for [] house expenses, &c., to date, which was the 1st of October, 1871. This was a large amount for the support, maintenance and education of the petitioner, who was then a boy of about eleven or twelve years of age, and the propriety of its investigation would seem to be suggested by its extent and the statement of it which was given. Other charges of a similar general nature were contained in the account settled on the other accountings, amounting in the aggregate to up Estate of Tilden. wards of $27,000. Neither of those charges seem to have been challenged or resisted by either one of the guardians appointed to represent the petitioner on the second, third or fourth accountings, but they were wholly accepted and passed as they were contained in the executors' accounts. And by means of these and other charges extending to about the 29th of June, 1881, the sum of $84,757.15 was in the aggregate charged to have been advanced for the support, education and use of the petitioner. The amounts appropriated to this purpose during the period of his minority was on an average of about $7,705 each year. It may be that these charges were very properly made and that the executors discreetly and judiciously exercised the authority with which they had been invested by the testator. But inasmuch as they were in no manner made the subject of contest or investigation on behalf of the petitioner in the accountings which took place, a case was presented in which it would seem to be proper, after the attainment by him of the age of twenty-one years, to allow him to contest the pro[] priety of these charges. In the second and third accountings the appointment of the guardians seem to have been regarded as so entirely unimportant as to have constituted only a formal compliance with what the law had required in that respect. The guardians were of no service whatever to the rights and interest of their ward, and apparently [] made no effort to investigate the propriety of any of the charges against him, although the duty to do so was significantly suggested by the large as well as very general charges against him contained in the accounts. For on December 31, 1872, he was charged $5,441.88 for his share of the household expenses to date. On May 1, 1873, a like charge of $2,800.99 was made. On December 31 of the same year another of $2,048.40, and on December 31, 1874, a like charge of Estate of Tilden. $4,803.24, during most of which period it is stated as a matter of fact that the petitioner was absent from home attending boarding-school. The last item in the third accounting was equally as suggestive in the same respect, for instead of charging the petitioner with expenses paid out on his behalf, the joint expenses of himself and another was evidently divided, and in the division the sum of $7,050.60 was charged as his half, and very much the same seems to have been the course of proceeding as to the charges in the fourth accounting. The same propriety, therefore, manifestly exists for favorably considering his application for liberty to contest the items forming the subject of complaint on his part on each of these accountings. As he has applied with reasonable diligence for liberty to make such contest after he attained his full age and received information of the actual state of the accounts, the application was entitled to a liberal degree of considera tion. And the same observation is pertinent to [*] the alleged failure of the executors to enforce the guarantees of the second mortgages assigned to them by William T. Blodgett. As to some of the charges affected by the complaint of the petitioner, it is alleged that the facts indicating them to be correct were within the knowledge of the executors. This complaint more especially relates to expenditures charging him with one-fourth of the household expenses after the return of the family from Europe, and to at least one item of $2,000 stated to have been paid to his mother for his board when he was away at school, and did not board with her for any portion of the time. The executors have asserted the correctness of these charges on the ground that the household was maintained in part by his mother as a home for the petitioner. They have also insisted that they are entitled to the allowance of the charges sustained by these several decrees, for the reason that the |