In re the Estate of Quinn

Of course, the executors are not bound by the order of September, 1886, as they were, in no way, parties to that proceeding, and they have a right to require-the principle involved in it, as it is sought to be used against them here, to be considered afresh. Probably that order was made almost as a matter of course, both parties being willing to receive the money, the one through the other. It does not appear that, at that time, the guardian, as such, *832had any funds- This court had, by the decree on the accounting, in June, 1885, determined that the annuities to the widow and to Mrs. Weston, by the terms of the will, had a preference of payment out of income, and that the executors should retain and invest the whole fund, in order that it should earn sufficient to meet such payments. This -decree, on appeal was affirmed. When the order of September, 1886, was made, directing the executors to pay certain funds to the guardian, the provisions of that decree probably escaped the attention of the court. In December, 1886, an application was made by the trust company for an order directing the executors to set apart and transfer to the company, as guardian, one moiety of the residuary estate for tíre use of said minors. This application was -denied. The present application seems to involve, to a certain extent, the considerations which induced a denial of that motion. Of course, if the guardian had funds in hand, there would be no occasion to ask this court to direct the executors to pay them moneys, to pay the petitioner.

Doubtless, the father of these minors may, under § 2846 of the Code, apply for an order directing the guardian to apply the income or, if needful a part of the principal of the fund to their education and support, but he does not seem to be empowered to proceed against the executors, to any such end. That duty devolved upon the guardian, who has already as is seen, made an effort in that direction, and failed. Besides, an order cannot properly be made, directing the guardian to pay over money, for the purposes of education and support, to a person who is in no way amenable to this court for its application. Substantially, this question was determined in the case of Houghton v. Watson, (1 Dem., 299). The proper order, where it appears to be advisable that moneys should be applied to such purposes, would be one directing the guardian so to apply them. The responsibility would then be placed upon one who would be answerable here for the faithful performance -of the duty. If it saw fit to hand the money to the father to be applied, and it were misappropriated by him, the guardian would be liable. These reasons require that the present application be denied.

If it were necessary to consider the matter on its merits, it would also fail. The statements submitted show that the present net income is insufficient to pay the annuities, which have a preference.

Subsequently, the same petitioner, as guardian of the persons of the minors, presented a petition praying for a citation to the executors to show cause,for reasons assigned, why they should not be removed. As it is understood, he is only the natural guardian. According to § 2685 of the *833Code, such application can be made only by a person interested in the estate. He has no such interest, and his prayer must, therefore, be denied.