ANDREWS, J.
The claim of the original plaintiff to be allowed the amount advanced by him to his co-administrator, and applied by her to the support and maintenance of the infant children of Bernard Baxter, the intestate, was presented to the surrogate on the accounting of the administrators, and was disallowed by his decree in that proceeding. It was in the nature of a claim for an allowance for past maintenance, and if the power of a court of equity to make such allowance, invoked in this action, pertained to the surrogate on the accounting, his determination is res judicata, and is conclusive upon the parties until set aside or reversed, however erroneous it may have been. ( Vanderpoel v. Van Valkenburgh, 6 N.Y. 190; In re Hood, 90 id. 512.) The principle of res judicata supports the conclusiveness of a judgment when the same matter is subsequently called in question between the parties in a collateral action, whether the question was rightly or wrongly decided, on the principle of quieting contentions, and securing the orderly administration of justice. If, therefore, the surrogate had jurisdiction to pass upon the merits of the claim for past maintenance, this action cannot be maintained, and the plaintiffs must seek their remedy in the prior proceeding.
The power of a court of equity to make an allowance out of the estate of infants for past maintenance was carefully examined and affirmed by the chancellor in Matter of Bostwick (4 Johns. Ch. 105), where the mother of certain infants entitled to the principal of a sum of money on her death, presented her petition praying for an order that a portion of the principal belonging to the infants should be applied to reimburse her for their past maintenance and to discharge of debts necessarily incurred by her for that purpose, and also to provide for their maintenance in the future. The chancellor granted the relief in both aspects, and referring to the ruling of Lord THURLOW in Andrews v. Partington (3 Bro. 401), that no allowance could be made to a parent for the past maintenance of an infant, said: "It would lead to great inconvenience, for though the wants of the infant might be ever so pressing, he could not receive any maintenance (charity excepted) without the expense of a suit and reference to a master." It is not necessary at the present time to consider the rules which govern courts of equity in exercising this jurisdiction, but the general principle has been applied in many cases, that an allowance for past maintenance may be made to executors, trustees, or guardians, upon an accounting or upon petition, even when it requires a breaking in upon the capital, provided the expenditure for which reimbursement is sought would have been authorized by the court if an application had been made in advance. ( Lee v. Brown, 4 Ves. 362; Greenwell v. Greenwell, 5 id. 194; Sisson v. Shaw, 9 id. 285; Prince v. Hine, 26 Beav. 634; 2 Wms. on Exrs. 1272; 2 Lead. Cases in Eq. 720.)
There is no express power conferred upon a surrogate to make an allowance for past maintenance upon an accounting by executors or administrators. But he is authorized to direct and control the conduct, and settle the accounts of executors and administrators, and to administer justice in all matters relating to the affairs of deceased persons according to the statutes of this State. (2 R.S. 220, § 1, subd 3, 6.) The limitation, following the enumeration of the powers granted to the surrogate in the section cited, that "they shall be exercised in the cases and in the manner prescribed by the statutes of this State," does not confine the exercise of his jurisdiction to such acts only as are expressly authorized, but his jurisdiction is subject to the general principle governing the construction of powers, that an authority conferred for a particular purpose, carries with it by implication such incidental powers as are requisite to the complete execution of the power expressly granted ( Seaman v. Duryea, 11 N.Y. 324; Sipperly v. Baucus, 24 id. 46; Riggs v. Cragg, 89 id. 479.) The general power granted to the surrogate in the section cited, to direct and control the conduct and settle the accounts of executors and administrators, is supplemented by specific provisions in the article, relating to the rendering and settlement of their accounts and the distribution of the estate. The seventy-first section (2 R.S. 95) declares that the surrogate in his final decree on an accounting, shall settle and determine all questions concerning any debt, claim, legacy, bequest, or distributive share, to whom the same shall be payable, and the sum to be paid to each person. There seems to be no good reason arising out of the nature of the question, or the constitution of the tribunal, which should deprive a surrogate upon a settlement of the account of an executor or administrator where advances have been made for maintenance, to determine upon equitable principles a claim for an allowance. On the contrary it would seem to be a very proper place and time to have the question determined, thereby saving expense and preventing further litigation. It is true that an administrator in making advances acts without authority and at his peril, but this is true in every case where a parent, or one in loco parentis, or a trustee, or guardian makes advances not previously sanctioned by the court or by the instrument creating the trust, and comes to the court for relief. The fact that the question is an equitable one, and depends upon equitable principles, is not a ground of objection to the jurisdiction. The Surrogate's Court is a court of limited powers and jurisdiction, but it has jurisdiction to determine questions either legal or equitable arising in the course of proceedings in the execution of powers expressly conferred, and which must be decided therein. ( Jumel v. Jumel, 7 Paige, 591; Boughton v. Flint, 74 N.Y. 476; Riggs v. Cragg, supra.) In the case last cited it was held that where the right to a legacy depended upon the construction of a will, the surrogate has jurisdiction to construe the will, as incident to his power to make distribution, although he has no general jurisdiction in the construction of wills. It has been held that a surrogate cannot decree a set off of judgments, or dispute the validity of a judgment, or settle disputed claims. ( Stilwell v. Carpenter, 59 N.Y. 414; McNulty v. Hurd, 72 id. 518; Tucker v. Tucker, 4 Keyes, 136.) These cases proceeded upon special grounds not necessary to be stated. But a surrogate may adjust a claim of the executor against the estate, whether legal or equitable. ( Jumel v. Jumel, supra; Boughton v. Flint, supra.) In the present case, the surrogate was called upon to settle the accounts of the administrators, and decree distribution of the estate in their hands, and the statute made it his duty in the proceeding to settle and determine all questions concerning any claim or distributive share. The statute in some cases expressly confers jurisdiction upon the surrogate to direct the application of an infant's property to his support. (2 R.S. 91, § 49.) It also authorizes testamentary trustees to settle their accounts before the surrogate, and declares that his decree on a final settlement shall have the same force and effect as the decree or judgment of any other court of competent jurisdiction, as to all "matters relating to such trust," embraced in the accounts, or litigated, or determined on the settlement. (Laws of 1850, chap. 272.) In an accounting, under this statute, the surrogate could, we think, pass upon and determine a claim made by the trustee for allowance for past maintenance of an infant cestui que trust. We are also of opinion that the same power existed in the present case, as incident to the power of the surrogate to settle the accounts of administrators and decree distribution among the next of kin. This conclusion leads to an affirmance of the judgment. The objection to the allowance to Hyland of sums necessarily expended for the support of the infants, seems very inequitable. The General Term on the appeal from the surrogate's decree may be able to find some way of doing justice between the parties.
The judgment should be affirmed, but without costs to either party on this appeal.
All concur.
Judgment affirmed.
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