majority">By the Court, Welles, J.

It appears by the case that the referee received in evidence the petition to the surrogate, *470and proceedings founded thereon, with the order of the surrogate for the removal of Montgomery as general guardian of the plaintiffs. This evidence was offered for the purpose of proving, as stated by the counsel for the plaintiffs, that Montgomery acted fraudulently in the sale of the plaintiffs’ lands, as alleged in the complaint, and for the purpose of proving his actual removal as such guardian; which was objected to by the defendants’ counsel in due time and in proper form. It also appears in like manner that the referee received in evidence the judgment roll in the action brought by the plaintiffs, in this court, against Montgomery, Gardner and Underwood, in which action it was adjudged that the proceedings for the sale of the plaintiffs’ interests in the farm mentioned were fraudulent and void and were set aside, and Underwood, the grantee of the farm under those proceedings, was ordered to reconvey the farm to the plaintiffs. The counsel for the plaintiffs offered to read this judgment roll in evidence, as the case states, to prove, 1st. The fact of the removal of Montgomery as general guardian of the infant plaintiffs. 2d. To prove the sale.of the real estate, as alleged in the complaint. 3d. To prove that Montgomery, in procuring and making such sale, as the guardian of said infants, acted fraudulently. The defendants’ counsel, in due time and in proper form, objected to the evidence. This evidence was undoubtedly competent and proper as against the defendant Montgomery, but it did not prove any thing against the defendant Malin, for the reason that the damages to the plaintiffs arising out of the improper conduct of Montgomery, as charged in the complaint, was not embraced within his liability as surety upon Montgomery’s official bond as guardian. A portion of the breaches of the condition of the bond assigned in the complaint, are the fraudulent acts of Montgomery in the part he took in the proceedings to procure the sale of the interest of the plaintiffs in the farm mentioned; and assuming that the condition of the bond embraced and was intended to provide against the wrongful and fraudulent conduct of Montgomery, the proceedings before the surrogate for his removal, and the judgment roll in *471the action against him and Gardner and Underwood were incompetent evidence against Malin to prove Montgomery’s misconduct. Malin was neither a party or privy to those proceedings, and is not to be affected by them. (Douglass v. Howland, 24 Wend. 35to 58, &c. and authorities there cited. Coan v. Osgood. 15 Barb. 583, and authorities there cited.)

The foregoing proceedings before the surrogate, and the judgment roll in the action in this court, mentioned and set forth in the case, was all the evidence before the referee tending to prove the misconduct of Montgomery as guardian. It follows, therefore, that the report, as respects the defendant Malin, in this particular, was unsupported by any legal evidence whatever; as there is no evidence that he had any notice of the proceedings before the surrogate, or of the commencement of the action, so as to enable him to make a defense; even if a notice would have so far connected him with the proceedings and the action as to affect him by their results.

But admitting that the judgment roll was properly received, and the charge of Montgomery’s fraudulent conduct thereby established, the evidence detailed in the case, as well as the report of the referee, show that all the legal costs of that action, together with an extra allowance by the court, have been paid; and the plaintiff is not at liberty now to come and claim that the law had not given him sufficient compensation, and ask the court to compel the surety, nor even the principal, to make up the balance.

In respect to the costs before the surrogate, on the proceedings for the removal of Montgomery as general guardian, the bond does not reach or provide for them. The condition of the bond was that Montgomery should faithfully and in all things discharge the duties of general guardian to the plaintiffs, according to law, and should render a just and true account of all moneys and property which should be received by him as such guardian, and the application thereof, and of his general guardianship in all respects, to any court having cognizance thereof, when thereunto required. The costs of removing him did not *472appertain or relate to his doings or conduct as guardian, and were not within the liability of the surety on his bond; and if they were, the extra counsel fees allowed by the referee were entirely unwarranted by law.

It also appears to us that the referee should have made an allowance to Montgomery for boarding, clothing and schooling the plaintiffs while they were with their father, under the contract between them, as reported by the referee, as is shown by the evidence. This contract was entered into shortly after the appointment of Montgomery as the plaintiffs’ general guardian, and they continued with their father under it for nearly two years, and for which no allowance has been made by the referee. It was objected to,-before the referee, on the ground that Clark, the father of the plaintiffs, was bound by law to maintain, support and educate the plaintiffs out of his own means. That is so, under certain circumstances and as between persons standing in certain relations to each other. But it is the primary duty of the general guardian of an infant to provide for its support, maintenance and education. He stands in loco parentis to his ward, and is entitled to his custody and to direct his education, &c. (2 R. S. 150, §§ 1, 2, 3. Id. 151, § 9.) It is unusual for the surrogate to appoint a general guardian for an infant having a father, yet it may be, and sometimes is, done; and then the guardian succeeds to the rights and duties of the father, subject to the authority and discretion of a court of equity. In the present case the presumption is that there was good' cause for the appointment; and it was in all respects valid until the guardian was removed. It is also to be presumed that the arrangement between Montgomery and the parents of the plaintiffs, for their boarding, clothing and schooling, was a reasonable and proper one, until something is shown to the contrary ; and- should be treated as valid, and upheld' accordingly. The evidence shows that the father was poor, and the farm of the plaintiffs was their separate property. Under such circumstances we can see nothing improper in the guardian paying for their support and education out of their separate estate.

*473[Monroe General Term,December 1, 1856.

We think the judgment should be reversed, the report set aside and a new trial granted, with costs to abide the event.

Judgment accordingly.

T. R. Strong, Welles and Smith, Justices.]

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