App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1896. only to the extent of the value which he has paid. (Huff v. Wagner, 63 Barb. 215; Harger v. Wilson, Id. 237; Stevens v. Corn Exch. Bank, 3 Hun, 147; Todd v. Shelbourne, 8 id. 510; Fairbanks v. Sargent, 104 N. Y. 108.) It appears that the plaintiff advanced but $400 on the second note, and to that extent only could it recover from the makers. The bank parted with nothing upon the strength of defendant's contract. Another thing, the cashier of plaintiff's bank was informed, on the day the first note fell due, that the second note was a renewal note. Plaintiff claims that it acted innocently when it received payment of the second note. It had in its possession two notes for the exact sum, $1,970.30, and yet it claims to have had no suspicion that one might be a renewal note. How was it that the payment of the original note was not required of defendant? How was it that defendant was not informed of its existence when he paid the second? For what reason was it that a stranger to the note is requested to pay it, or was looked to for payment? If we assume that plaintiff's officers acted in ignorance of the exact nature of the transactions, must the defendant suffer for it? Should it be held responsible, not only for the fraudulent acts of the plaintiff's assignors, but also be saddled with responsibility for the mistakes of plaintiff's officers? It becomes unnecessary to consider the question that has been so elaborately and learnedly argued, whether, if this payment had not been made, the plaintiff would have been entitled to maintain an action upon the agreement and guaranty executed by the defendant; though it must be confessed that grave doubts exist as to whether the instruments in question are of such a character that a third party may assert a right of action upon them. Plaintiff derives its title to both notes through Holland & Co.; and if it has sustained damage it must look to them for redress, and may also hold the makers responsible to the extent of the moneys advanced, upon the strength of their signatures to a negotiable instrument, for the reason that their promise was, in the view of the law merchant, a promise to be answerable for the wrongful and fraudulent negotiation of the paper to a bona fide holder for value. But the defendant's agreement or guaranty was not of that FOURTH DEPARTMENT, JUNE TERM, 1896. [Vol. 8. character and in a legal sense it can hardly be maintained that any damage whatever was sustained by the plaintiff, for it received what it bargained for, viz., the valid promissory note of the makers, who are liable to the extent of the value parted with on the faith of the note. The fact that the plaintiff may have been prejudiced in its rights by forbearing to enforce the past due indebtedness of Holland & Co., for which the note was received as collateral security, does not constitute damage in a legal sense. That indebtedness still exists, and has always existed. In respect to defendant's rights and liabilities, the payment of the second note discharged the original one, and he was entitled to its surrender or cancellation. (Story on Prom. Notes, §§ 106-112.) There is no element of estoppel in the case; for the defendant here has done nothing by act, word or deed to mislead the plaintiff to its prejudice, or to cause it loss or damage, and is not, therefore, precluded from contesting its liability to pay the amount of the first note, by showing that it paid a sufficient sum of money in satisfaction and discharge of the only claim for which it was liable. The motion for a new trial should be granted, with costs to abide the event of the action. All concurred, except WARD, J., dissenting. Motion granted and a new trial ordered, with costs to abide the event. In the Matter of the Application of MARK MATTHEWSON, as Administrator, with the Will Annexed, of ALFRED MATTHEWSON, Deceased, Appellant, for an Accounting by FRANK N. GUNNISON, Respondent, as Executor, etc., of LAURA MATTHEWSON, a Deceased Executrix, etc., of ALFRED MATTHEWSON, Deceased. Executrix, when she will be denied commissions· costs and allowances, when not properly charged against the estate. Where the will of a testator gives to his widow merely the income of his residuary estate for life, the remainder being bequeathed to certain legatees, and the widow treats the estate as though it had been devised to her absolutely; makes no inventory nor appraisal; does not have set off to herself in the manner provided by statute the property to which she is entitled as a App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1896. widow; keeps no account as executrix; makes no division of the principal from the income, and mingles the money and property of the estate with her own, she is not entitled to commissions, nor after her death can any be claimed by her executor in her right. Where the executor of a deceased executrix of her husband's estate fails, for more than four months after he has qualified, to make up an account showing the condition of the property of his decedent's husband, and when the administrator with the will annexed institutes proceedings to compel him to account, renders an account which the administrator surcharges by the addition thereto of some $800, it is improper for the surrogate to decree that the allowances, costs and disbursements of both parties to the proceeding should be paid out of the estate of the husband. APPEAL by Mark Matthewson, as administrator, with the will annexed, of Alfred Matthewson, deceased, from a decree of the Surrogate's Court of the county of Ontario, entered in said Surrogate's Court on the 12th day of August, 1893, except such part of said decree as adjudges and decrees that the accounts of said executor be surcharged with the following items: 1. The sum of $200, received from John Wulf on a land contract. 2. The sum of $41.66 upon the sale to Hiram D. Matthewson. 3. The sum of $40.25, collected from Emma T. Hicks. 4. The sum of $150, received for horse and harness. 5. The sum of $20, received for sale of buggy. 6. The sum of $128.24, received on Paddleford's note. 7. The sum of $20, the value of the chain and charm. S. B. McIntyre, for the contestant and appellant. Thomas H. Bennett, for the respondent. GREEN, J.: Alfred Alfred and Laura Matthewson were husband and wife. died on or about October 9, 1881, leaving a last will and codicil thereto, wherein, after directing the payment of his debts and funeral expenses, he devised and bequeathed all the rest, residue and remainder of his estate to his wife Laura, to have the use, rents, profits and income thereof during her natural life, and, after her death, unto certain legatees and devisees named therein. The will and codicil were admitted to probate on January 3, 1882, and letters testamentary were issued thereon to Laura. Laura Matthewson also made a will about six months after her husband had made his, the material provisions of which are so like APP. DIV.- VOL. VIH. 2 FOURTH DEPARTMENT, JUNE TERM, 1896. [Vol. 8. the corrresponding provisions of her husband's will as to create a strong presumption of a mutual understanding between them as to the provisions each made for the benefit of the survivor. Laura outlived her husband nine years and six months, and died on the 3d day of April, 1891. By the terms of Laura's will she appointed the respondent, Frank N. Gunnison, the executor thereof. Her will was never changed, and was duly admitted to probate and letters duly issued thereon to Gunnison, as executor, on the 20th day of April, 1891. There was no issue of the marriage of Alfred and Laura Matthewson. Mark Matthewson was, on May 14, 1891, duly appointed administrator with the will of Alfred Matthewson annexed, and, in the month of September following, instituted this proceeding by filing his petition in the Surrogate's Court, praying that the executor of Laura's will be required to render an account of her proceedings as executrix of Alfred's will, and to pay over the remainder to Alfred's representative. Thereupon a citation to show cause was issued by the surrogate and served upon the executor, returnable October 5, 1891, and on that day the executor rendered and filed his account, showing a balance of $1,181 to be turned over to the administrator, subject, however, as claimed in such account, to the deduction of the legal commissions and expenses of the accounting. The balance thus shown consisted of $1,000 in the mortgage of Jacob L. Case and the remainder in cash. The administrator subsequently filed his objections to the executor's account, and claimed that said account should be surcharged with numerous items. A contest over the account was had before the surrogate, who thereafter made and filed his decree therein. An examination of the voluminous evidence upon such contest discloses the fact that the main contention was whether the items which the administrator claimed should be surcharged upon the accounts of the executor, were moneys and property belonging to Alfred or to Laura. The surrogate has passed upon such questions of fact, and also upon the questions of law presented upon the trial, and an examination thereof discloses no reason for interfering with such decision. We are, however, of the opinion that the trial discloses such a App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1896. condition of affairs as precludes Laura, the executrix of Alfred's will, or her representative in her behalf, from claiming commissions. It appears that Laura treated the estate of Alfred as though devised to her absolutely; she made no inventory of the estate of which she was executrix; no appraisal thereof was ever made; the property to which she, as widow, was entitled was never set off to her in the manner provided by statute; she kept no accounts as executrix of said estate. The moneys and the property of that estate were mingled with her own at all times; no discrimination or division was made between income and principal. No report of her proceedings as executrix was ever made to the surrogate. No account was ever made and filed by her as such executrix. By the terms of the will she was made the trustee for the benefit of the residuary legatees of the estate coming into her hands as such executrix. The commistions which her representative now asks should be allowed against the estate of Alfred are for services in the discharge of her trust. Commissions are given to representatives as a compensation for their services in protecting the estates of those for whom they are acting as trustees, and the cestui que trustent are entitled to the performance of such services in the preservation of the estate, and that they be rendered in such manner, as an ordinarily prudent and careful man would exercise such powers under the like conditions and circumstances. In this case no such services were performed. The law provides for the manner in which such a trustee shall act toward the trust estate. It is the duty of such a trustee, upon the receipt of an estate represented by him, to make and file in the proper court an inventory of the property coming into the hands of such trustee, so that those who are interested in the estate may, at the very outset of a trusteeship, be able to ascertain what property they are entitled to. After the making of such an inventory, the trustee should have the property appraised, and such property as the widow, as such, is entitled to, should be set apart by the appraisers. If these requirements had been fulfilled at the outset of the trusteeship, the character and extent of the property would have been fully disclosed. It could easily have been ascertained what was principal and what was income, what was the property of the residuary legatees and upon what property the life tenant was entitled to income. In the proper charge of her duties as trustee, an account showing the manner in |