MATTER OF MARX

MATTER OF MARX. Surrogate’s Court, City and County of New York; October, 1878. AccouiíTBsra of Admintstbatok. — Allowances.—Pabent and Child. — Suepobt of Child by Pabbnt. A father is not obliged to support Ms minor cMldren where they have property that may be applied for that purpose. Where one who had been appointed administrator of his wife’s estate, applied money of the estate in good faith to the support of their children, — Reid, that the amount should be allowed to the adminis- ' trator on a final accounting. Motion, for allowances on confirmation, by surrogate, of an auditor’s report. Emanuel Marx was appointed administrator of the estate of his wife, Celia Marx, and after he had served about a year, was removed, and Mayer Southeimer appointed in his place. Upon the accounting of the former, the latter filed objections to the account, and a reference was ordered. By the referee’s report, which appeared to have been confirmed by default, it appeared that the removed administrator had used some of the assets in the support and maintenance of the children, who were entitled to a portion of the estate, although he had not been appointed their guardian; and for that reason the expenditure was disallowed by the auditor, and also because he was the father of said children and was legally bound to support them. This motion was made for allowances to be fixed on a presentation of a decree entered on a formal confirmation of the auditor’s report, and to charge the administrator personally with such allowances and the expenses of the accounting, on the ground, among other things, that he was unsuccessful on his accounting, and had left the State to avoid the performance of the decree. Phillip Bottman (Bottman, Roesch & Shaefler, attorneys), for the motion. Adolphus D. Pape, opposed. [MAJORITY — Calvin, Surrogate.] Calvin, Surrogate. [After stating the facts.] — This finding is upon an extreme technicality, and as to the last named obligation, it is a mistake to suppose that a parent is under obligation to support his minor children where they have property that may be applied for that purpose; and while this is not a review of the auditor’s report, I am of the opinion that its terms may properly be considered as to the propriety of charging the administrator personally with the expenses of his accounting, and that he is shown not to have acted in bad faith, and that considerable of the money expended by him for the support of the children, disallowed by the auditor, was in good faith devoted to their support. I am, therefore, of the opinion that whatever expenses have been incurred, and allowances shall be made to the present administrator’s counsel on this accounting,, should be charged to and paid by the estate.