Estate of Kaufman. that if the property was assets of the estate, notwithstanding the agreement, he would hold such assets as administrator and be liable as such. Apply this principle to the case at bar, and we find that this money was the absolute property of these children, which conld not have gone into any other hands but the guardian's. That being the legal status of the parties, the agreement did neither contract nor enlarge the powers conferred by law. I am also cited to the case of Hindman v. State of Maryland, 61 Md. 471. The controlling question in that case was whether an executor, under a will, in respect to a legacy of four hundred dollars bequeathed to a minor, to be paid to him on his attaining the age of twenty-one years, the interest in the meantime to be paid to two other parties, could legally pay the corpus to a guardian, for which, in default of payment by such guardian, his bondsmen would be liable; and it was held that no special direction being given by the testator as to who should invest the fund, it was the plain duty of the executors and no one else. It followed by necessary implication, as one of the duties of their office, and they could not divest themselves of it while holding their respective relations to the estate, and the executors not having power to shift their responsibility, or to transfer this fund upon the same trusts, and the guardian not having power to receive it, his sureties would Estate of Kaufman. not be liable for his default. But it does not follow that if the testator had imposed upon the guardian this power, or had failed to bequeath the interest, and such executor should have paid the corpus to the guardian, that the sureties would not be liable on the bond of such guardian; and this view is strengthened by the case of Gunther and Canfield v. The State of Maryland, 31 Md. 21. In that case the legacy was to be paid to the legatee in case he attained the age of twenty-one years. In the meantime the interest was not bequeathed, and the executor having paid such legacy to the guardian, and the guardian having defaulted, the court held that the payment to the guardian was legal. From these cases it must also follow that a guardian may hold the corpus as guardian and become trustee as to the interest. These children being still minors, and their estate being still under the control and direction of this court, and the court having found that the guardian duly received the money as such, an order will now be made directing said Leopold Rosenfeld to account, as the late guardian, for said sum of $5,000, and ordering him to pay the same to the present guardian. NOTE.-The judgment in this case was reversed by the Hamilton Common Pleas and affirmed by the Circuit Court, First Circuit, No. 602. In re estate Benjamin Kaufman et al,, unreported. Clark, Executor v. Harlan. PETER CLARK, EXECUTOR, v. ROB'T HARLAN ET AL. Jurisdiction of Probate Court to sell real estate of deceased wife— Surviving husband's curtesy. In a proceeding by an executor to sell the real estate of a deceased wife, not specifically bequeathed, to pay debts, the Probate Court has jurisdiction to order a sale thereof free of, or subject to surviving husband's curtesy, and for this purpose may make him a party defendant in such proceeding. A surviving husband has no curtesy in the interest of a granddaughter of his deceased wife and a former husband. A surviving husband has curtesy in the interest of an adopted daughter of his deceased wife and a former husband. Decided April 30, 1887. ON motion for an order of distribution of the proceeds of sale of certain real estate. Stevenson & Day for Robert Harlan. Harmon, Colston, Goldsmith & Hoadly for Clark. The determination of the questions here involved requires a full statement of the facts. Mary Clark, and Elliott Clark, her husband, on the 8th day of June, 1866, jointly adopted, under the statutes of Ohio and by a proceeding in this court, one Rosaline Jones. Mary and Elliott Clark had one son, who died in the lifetime of his parents, leaving a daughter, who is known in this proceeding as Flor Clark, Executor v. Harlan. ence Turner. Subsequently Elliott Clark died, leaving this grand-daughter, Florence, and his adopted daughter, Rosaline, and his widow, Mary Clark. Mary Clark, on the 21st day of December, 1876, intermarried with Robert Harlan, and during coverture acquired the property in question. She died testate and seized of the same, leaving no issue of the marriage with Harlan. Peter H. Clark, who had been appointed executor, instituted proceedings in this court to sell this real estate, which was not specifically bequeathed, to pay debts of the deceased, and made, among others, Robert Harlan a defendant. Harlan files his answer, claiming curtesy in said real estate, and consenting to the sale, free of his curtesy, and praying the court to ascertain the amount due him on account thereof, and for an order to pay the same. A sale was had, and Robert Harlan now files his motion for a distribution, and to have the amount of his curtesy paid to him out of the proceeds of sale. This motion is resisted by the heirs, legatees, and devisees of Mary Harlan for two reasons: First-That an estate, by the curtesy, did not exist in the property sold. Second-If it did exist, this court had no jurisdiction to order it sold. The first question to consider is, did the court have power to order a sale of this property free of Harlan's curtesy ? Clark, Executor v. Harlan. It is maintained that in the absence of statutory provision directly authorizing the court to order the sale of real estate, either free of or subject to the curtesy, the motion of Harlan must be denied. There being no statutory provision, we must look to the general provisions, authorizing proceedings of this kind. This is a civil action under Section 6137 of the Revised Statutes, which may be commenced in the Probate Court or in the Common Pleas Court. The chapter relating to proceedings of this kind, further provides who shall be made parties; and while Harlan is not one of those mentioned in said section, yet if his application to be made a party were denied, it would be impossible for this court to determine the equities between persons claiming an interest in the subject-matter, and to order a disposition of the proceeds of sale as contemplated by Section 6145 of the Revised Statutes. I think that on full consideration of the various sections of the statutes relating to proceedings of this kind, it was intended to give this court full and complete jurisdiction over the subject-matter. This is evident from the fact that, prior to the act of 1858, a proceeding of this kind was not an adverse one; but the amendatory act of 1858 gives a full adversary character to the petition of an administrator for the purpose of selling real estate to pay debts. |