Fields a. Moul.

correctness of the former adjudications, as applied to the Code of Procedure, otherwise not. I think the power is conferred, and the propriety and extent of its exercise must be left to the enlightened judgment of the court. In the case of Kasson a. Mills it may well have been that the power of the County Court was indiscreetly and rashly exercised, for the judgment was reduced from $100 to $3.36, and this sweeping modification may have struck the Supreme Court in that case, as a bold innovation upon established practice.

In Farrell a. Calkins (1851, 10 Barb., 348), this court (Sixth District) held, that an entire judgment against several defendants, in an action of tort, or upon contracts, cannot be reversed as to one defendant and affirmed as to others. In the annunciation of so broad a principle, as applicable to the law under the Code, I think the court erred; but whether so or not, it does not touch that branch of the statute which we are now considering.

In Story a. N. Y. & Harlem R. R. Co. (1851, 6 N. Y., 85), tho Court of Appeals held, that a judgment cannot be affirmed as to part of the amount recovered, and reversed as to the residue, where a new trial is ordered, as to the part which is reversed. And one of the judges (p. 89) holds the rule to be independent of the statute," that where a judgment is not entire, but for dif ferent things, separable in their nature, and separated on the record, the Supreme Court, under its common-law powers, may reverse in part and affirm in part." A learned note appended to this case reviews most of the adjudicated cases, and justly criticises the reasonableness of some of the decisions, especially as applicable to the Code of Procedure, and comes to this conclusion upon a citation of cases: "When a judgment appealed from consists of distinct matters, and those matters are so presented that a final judgment may be rendered by the appellate court upon each, the judgment may be affirmed as to part, and reversed as to the residue." I have no doubt of the correctness of this proposition, and in substance it covers the case at the bar.

In Alexander a. Hoyt (1831, 7 Wend., 89), the Supreme Court, in apparent disagreement with some of the reported cases, in the case of an entire judgment in the Common Pleas against four defendants, reversed it as to one of them and affirmed it as to the others.

Brick's Estate.

In Geraud a. Stagg (1855, 10 How. Pr., 369), this whole question on the other branch of the case, as to parties-is learnedly and ably discussed by Justice Woodruff, then of the N. Y. Common Pleas; and he comes to the conclusion that a judgment may be reversed as to one defendant and affirmed as to another, and that the Code of Procedure has changed the former rule on this subject.

I think the present case was appropriately disposed of by the Ulster County Court, and that the judgment of that court should be affirmed. Order accordingly.

BRICK'S ESTATE.

Surrogate's Court, City and County of New York; Nov., 1862.

SURROGATES' COURTS, THEIR HISTORY AND JURISDICTION.-GUARDIANSHIP, HOW AFFECTED BY WARD'S MARRIAGE. SURROGATE'S POWER TO OPEN DECREE.-SERVICE OF CITATION ON INFANT.— GUARDIAN AD LITEM, HOW APPOINTED.-PRESUMPTION AS TO REGULARITY OF APPOINTMENT.-ACCOUNTING OF EXECUTOR, ETC., HOW FAR CONCLUSIVE.-INFANTS BOUND BY ACCOUNTING IN SURROGATE'S COURT.-FRAUD AND MISTAKE AS A GROUND OF OPENING SURROGATE'S DECREE.

The marriage of a female ward terminates the guardianship; though it is other. wise of the marriage of a male ward.

Hence, after the marriage of a female ward she may appear, in a proceeding before the surrogate, without such guardian.

History of the Surrogates' Courts, and the courts which formerly possessed their powers, in this State, traced from the earliest period.

The powers which Surrogates' Courts possessed before the enactment of the Revised Statutes, and which are continued by the provisions of 2 Rev. Stat., 220; as amended by the Laws of 1887, 536, ch. 460, § 71,-enumerated. Though the surrogates have power, of necessity, in the administration of justice, to undo what they have been induced to do through fraud, or upon the supposition that they had jurisdiction, or on the assumption that a party was dead who is living, or that there was no will; and may open decrees taken by default, or correct mistakes, the result of oversight or accident; and, in this State, may revoke the probate of wills or letters of administration, or of guardianship

Brick's Estate.

in the cases provided for by the statute; yet where all the parties in interest were represented at the hearing, and the court has given its final sentence or decree, it has not the general power of opening and reversing it again, upon the ground that it had erred as to the law, or had decided erroneously upon the facts.

Service of a citation to a ward to attend an accounting of the executor before the surrogate, is properly made by delivering it to the ward personally in the presence of the ward's legal guardian.

If the guardian has an interèst adverse to the ward, a special guardian may be appointed.

Even if the service or the citation were defective, the ward's actual appearance, pursuant to it, before the surrogate, gives him jurisdiction to appoint such special guardian.

The surrogate has power to appoint a special guardian, or guardian ad litem, for a minor, though over fourteen years of age, without the consent of the minor. This power is incident to every court of justice, whether of inferior or general jurisdiction; and it is recognized, in the case of surrogates, by 2 Rev. Stat., 220, § 1, subd. 7, and the act of 1787. The provision of 2 Rev. Stat., 150,which requires the ward's consent,-relates only to the appointment of general guardians.

In the absence of evidence to the contrary, the regularity of the appointment of a guardian ad litem is to be presumed.

Although the provision of 2 Rev. Stat., 94, § 65, declares a final accounting of an executor or administrator conclusive as to certain specified matters, in all tribunals, it is still conclusive in the Surrogate's Court, as to all other matters, so far at least as to the right to compel a further account. Such an accounting is as conclusive against infants, as it is against other parties. Ecclesiastical or Surrogates' Courts have not power, unless it is conferred by statute, to open a decree affecting an infant, after the infant attains majority. It is only in case of bad faith on the part of the guardian ad litem or executor, or fraud or surprise upon the court, that the infant is entitled to have such decree set aside.

Where an application on behalf of an infant to open a final accounting, and have a reaccounting, was made, but not chiefly on the ground of fraud, and the application was not sustained on the other grounds, and the evidence of fraud slight;-Held, that it should be denied without prejudice to a renewal on further evidence of fraud.

Petition to open a final accounting of the executor of the estate of Joseph W. Brick, and for a further account.

The facts, so far as material to the questions determined, are stated in the opinion.

Mr. Stoutenburgh, and Murray Hoffman, and Richard O'Gor man, for the petitioner.

Cummins, Alexander & Green, and Lewis B. Woodruff, opposed.

Brick's Estate.

DALY, First Judge of the Court of Common Pleas, Acting Surrogate. This is an application, on behalf of an infant devisee of the testator, to open a decree made by the late surrogate upon a final accounting of the acting executor, upon the ground that many unjust and illegal charges were allowed, to the detriment and injury of the petitioner.

The petitioner, who has not yet attained her majority, is a married woman. She was a daughter of the testator, and her mother was appointed by the will her testamentary guardian. An objection is taken that this application must be made by her guardian and not by herself, while on her part it is insisted that her marriage determined and put an end to the testamentary guardianship of her mother.

In several parts of England the marriage of a female, by local usage, terminated her guardianship (Bohun's Customs of London, 315; Wilkinson a. Bolton, 1 Lev., 162; S. C., 1 Sid., 250; T. Ray, 116), and a provision to the like effect was incorporated in our colonial statute (Act of 1692, Laws of N. Y., Smith & Liv. ed., 15), but at first the courts were unwilling to recognize it as a general rule.

It is said in Rolle's Abridgment (1 Rolle, 288), that if baron and feme suffer a common recovery, and appear by attorney, the feme being under age, it is in error, for she should appear by guardian; but the point was doubted by two of the judges.

In Freeman a. Biddington (Vent., 185; 2 Lev., 38; 2 Keble, 878), which was an action of assumpsit against baron and feme on a contract for wares by the feme dum sola, in which they both appeared by attorney, it was held after judgment by two of the judges, that it was error,-that the wife should have appeared by guardian.

But in a later case (Mendes a. Mendes, 1 Ves. Sen., 90), it was held, by a very great authority, Lord Hardwicke, that though the marriage of a male ward did not determine the guardianship, the marriage of a female ward did, and he declared that it was so adjudged in the case of Lord Shaftesbury; and again. in Roach a. Garvan (1 Ves. Sen., 159), he declared that the court would not appoint a guardian after marriage.

* During a vacancy in the office of surrogate, the Hon. Charles P. Daly, First Judge of the New York Common Pleas, discharged the duties of the office.

Brick's Estate.

These two latter cases are referred to by Macpherson in his work on Infants (p. 90), as authority for the rule that testamentary guardianship is not determined by the marriage of a male ward, but that the guardianship of females is determined by their marriage.

He remarks that it is a necessary consequence of the rights which a husband acquires by marriage with regard to his wife's person and property; and as the reason he assigns is a satisfactory one, I shall treat the rule as established, and overrule this objection.

The next objection goes to the jurisdiction of the court. It is insisted that Surrogates' Courts in this State are courts of special and limited jurisdiction, and if the parties in interest have been duly cited, and the surrogate has pronounced his sentence or decree, that he has no authority afterwards to revoke, alter, or amend it, except in certain specified cases, and that this is not one of them. On the part of the petitioners, on the other hand, it is claimed that the repeal of the provision in the Revised Statutes, by which the Surrogates' Courts were limited to the powers therein expressly enumerated, has restored these courts to every authority which they possessed prior to the revision of 1829. That they have now the same general powers which the ecclesiastical or spiritual courts of England exercised in testamentary matters, and in cases of intestacy, and can, after decree or sentence pronounced, give the same species of equitable relief, if mistakes or errors have been committed or injustice has been done, which may be had in a court of equity after a decree has been rendered.

In the Revised Statutes the powers conferred upon Surrogates' Courts were specifically defined, and it was declared that the powers therein enumerated should be exercised in the cases and in the manner prescribed by the statutes of the State, and in no other, and that no surrogate should, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever not expressly given by some statute of the State. (2 Rev. Stat., 220, § 1.)

In recommending this very stringent provision for adoption, the revisors in their notes said that the jurisdiction of surrogates was very undefined, and might give rise to most serious questions that the foundation of the authority exercised by the