present a petition for the judicial settlement of his separate account, and pray that his coadministrator may be cited to attend. That is not this case, but the administrators of the deceased administrator have been cited. The duties of the deceased administrator were paramount to his interests as next of kin, and his administrators in this proceeding stand precisely in his place. They can no more question any act of his than he could, if he were alive and a party to this matter. He certainly could not be allowed to charge his coadministrator with a devastavit in handing over the moneys of the estate to him, or of taking title to himself of lands sold under the foreclosure of a mortgage belonging to the estate, or of taking assignments of such mortgages to himself. If he were guilty of a devastavit, his administrators are in no position to allege it in this proceeding. The administrators seem to have acted in entire harmony in mismanaging the affairs of the estate, and each one appears to have had a knowledge of what the other one did, and no complaint was ever made. Their duty was a plain statutory one, and they should have closed up the matter many years since; but, instead of doing so, they appear to have managed it as though it all belonged to the two next of kin, as it did, without regard to the fact that they must die, when others might step in and criticise their acts. The only safe guides for executors and administrators are the statutes on the subject. A failure to observe them almost inevitably leads to trouble. Here they invested and reinvested moneys, and did many other things that were entirely foreign to their duties, but of which these contesting administrators have no right to complain; and hence their objections must fall. The statute of limitations is invoked as a protection by the accounting party, and it would seem that it is a shield of which he may rightfully avail himself here. Administration was granted in October, 1877. One year from that time the distributive shares became due. The administrator next of kin died in December, 1889. The next year this voluntary proceeding was commenced, and the next year, before its conclusion, Julia Van Wert, the only other next of kin, died. About 12 years, therefore, elapsed before any settlement of the estate was sought or commenced, within which it could have been done. It was held in the case of House v. Agate, 3 Redf. Sur. 307, affirmed by the general term on appeal, that in such case the statute was a bar. It was also held in that case that the fact that the executor applied for a voluntary accounting did not deprive him of the right to set up the statute. The same doctrine was held in Re Clayton, (Surr.) 5 N. Y. Supp. 266. All of the assets of this estate fell at once into the hands of the administrators, and it does not appear that any have since been received. The interest they subsequently received on securities other than such as were accruing at the intestate's death was not a portion of the assets received by them. It may be said that payments were made by the accounting party to "W. A. Van Wert, coadministrator and next of kin," as he states in his ac count, which operate to take the case out of the statute. A payment, usually, to revive a claim barred, is upon some previous fixed sum, but here there was and could be nothing of the kind. I am inclined to think that, if there were such payment, it would not operate to take the case out of the effect of the statute. However that may be, as above remarked, the duties of the deceased administrator were paramount to his rights as next of kin, and he must be deemed to have received such moneys in his official capacity, to be duly administered by him. As to Julia Van Wert, it does not appear that the accounting party ever paid to her anything on account as next of kin or otherwise since 1878. It was claimed, however, by him that his coadministrator acted as agent for Julia, and that he handed him money for her, while this is denied by the contestants. In my view of the matter, it is unnecessary to decide the controversy. The statute bars her claim. It seems to me that on both the above grounds the contestants have established no liability to them on the part of Mr. Niven. If this be so, then the question as to his having or not filed proper vouchers is of no concern to the contestants. And, again, if it be correctly held that the moneys paid for or handed to the deceased administrator came into his hands in his official capacity only, then they were not payments, and vouchers are only required for payments made of debts or shares or other liabilities. There should be disallowed to Mr. Niven, however, his costs and charges in actions in which he was concerned as attorney. I so held in the case of Campbell v. Purdy, 5 Redf. Sur. 434. A decree will be prepared according to the views above expressed, with costs to the surviving administrator. (3 Misc. Rep. 385.) In re JONES. (Surrogate's Court, Westchester County. April, 1893.) WILLS--PROOF OF EXECUTION. In a proceeding in New York for the probate of a will executed in Pennsylvania 30 years before, the survivor of the three attesting witnesses testified that testator presented the will to him already signed, and requested him to sign as a witness, but he did not remember whether the other witnesses were present. The handwriting of testator and the deceased attesting witnesses was proved. Held, that the evidence showed a compliance with the New York statute, which provides that the attesting witnesses shall sign at the request of testator, which is not required by the Pennsylvania statute. Application by Franklin C. Jones, as sole surviving executor, for the probate of a certified copy of a paper purporting to be the last will, with a codicil thereto, of Frederick Klett, deceased, late a resident of the city of Philadelphia, in the commonwealth of Pennsylvania. The paper in question related to land in Westchester county, in the state of New York, and was on August 3, 1859, v.24 N.Y.s.no.9-46 admitted to probate by the register of wills in Philadelphia. Probate granted. W. S. Allerton, for petitioner. Stapler, Smith & Tomlinson, for F. K. Beckley and others. COFFIN, S. Judging from the language of the attestation clauses of the will and codicil, and the proofs taken on the probate by the register of wills, the laws of the state of Pennsylvania do not require that the witnesses should sign at the request of the testator, while the law of this state does. In order that the will may be admitted to probate here, it must be proven to have been executed according to the laws of this state. The attestation clauses to the will and codicil are similar, and state that they were "signed, sealed, published, and declared" by the testator, "as and for his last will and testament, in the presence of us, who have hereto subscribed our names in the presence of the testator and of each other." They do not state that they were requested by him to so sign, and the proofs follow the attestation clause. Our law, as stated, requires this request, in some form, to be made. It need not, however, be so stated in the attestation clause. That is no part of the will; and a will may be proven where there is no such clause, provided the witnesses can testify to facts showing a compliance with the requirements of the statute. In this case only one of three witnesses whose names are signed to the will is alive, and only one of three to the codicil; hence, if the will is susceptible of proof at all, it must be by the testimony of the living witness, and by prov ing the handwriting of the testator and of the subscribing witnesses, under section 2620 of the Code, and so of the codicil. Pleis, the living witness to the will, testifies that the testator presented the will to him, with his name already signed to it, and requested him to be a witness to his will, and that he signed it accordingly. This is all our statute requires, in so far as he was concerned; it having been repeatedly held that where the testator presents a paper with his name already signed to it, and declares it to be his will, it is tantamount to an acknowledgment of his signature. He could not, after the lapse of more than 30 years, recollect whether the other witnesses were present; nor was it necessary that he should. The statute does not require that the witnesses should sign in the presence of each other. The handwriting of the testator and of the other subscribing witnesses to the will having been proven, as provided by the section referred to, the will appears to be sufficiently established, and is therefore admitted to probate. The only surviving witness to the codicil is Richard J. Williams, a lawyer, who drew the codicil to the will, and was present at its execution. He does not swear positively that he saw the deceased sign it, but believes that the attestation clause, commencing "Signed, sealed," etc., states correctly what occurred, and says he signed as a witness at the request of the deceased, and that the other two witnesses either sigued at the request of the deceased or at his (Williams') request, with his consent. The handwriting of Frederick Klett and of the deceased witnesses was sufficiently proven by another witness. Now, while Mr. Williams does not directly testify that the deceased declared the paper to be a codicil to his will, yet he does say that he prepared the codicil at his bedside, and at his dictation, and that he believes the attestation clause, which states that he "published" the paper as such, to be true. There can be no reasonable doubt, from these facts, that the deceased fully knew and understood the character of the paper which he was executing; and this fulfills the requirements of the statute in this respect. From the language of the codicil it is fair to infer that it was indorsed upon or appended to the will, for it says, "I, Frederick Klett, the within-named testator," and refers correctly to the date of the will. I have heretofore held in Storm's Will, 3 Redf. Sur. 327, that the proving of the codicil, under similar circumstances, proves the will. Both are therefore admitted to pro bate. (4 Misc. Rep. 40.) In re PLACE. (Surrogate's Court, New York County. June, 1893.) GUARDIAN AND WARD-ACCOUNTING --LACHES. A ward, having come of age, had a talk with her mother, who had been her guardian, about accounts between them, when the mother said that she had spent the entire fund on living. It appeared that the mother's accounts were always open to her daughter's inspection, and that the latter had some knowledge of them, even as to very trifling charges against herself. Held, that she could not call her mother to account 10 years after her majority. Accounting by Annie M. Place, as guardian of Cora N. Barker. On exceptions to referee's report. Report overruled, and proceedings dismissed. Charles F. Wells, for guardian. RANSOM, S. This is an accounting by the general guardian of the infant above named, originally compulsory, but converted into a voluntary proceeding. Exceptions are filed by accountant and contestant. On the 8th of July, 1869, Mrs. Place, the mother of the infant, was appointed general guardian. The ward filed a petition for a compulsory accounting March 9, 1891, 22 years after the appointment, and within 6 days of 10 years after the ward had attained her majority. Prior to the taking of any testimony in this proceeding as to the accountability of said guardian for moneys received and paid out by her as such, counsel for the guardian interposed as a defense the statute of limitations, both to the said petition of the said contestant, and to the objections to said account of said guardian, as filed. The decision of the referee, overruling the objection of the statute of limitations. is based upon In re Camp, 126 N. Y. 389, 27 N. E. Rep. 799, which appears to hold that although a party may cease to be guardian, upon the ward coming of age, yet so long as the property remains in his possession as guardian, and unaccounted for, he remains liable to account. The leading case in this state upon the rule that, as between the trustee and the cestui que trust, no statute of limitations, nor any bar by analogy to the statute, can be relied on, is Kane v. Bloodgood, 7 Johns. Ch. 89. The case of Lockey v. Lockey, Prec. Ch. 518, referred to on page 113, 7 Johns. Ch., clearly recognizes the rule that, where there is a legal and equitable remedy in respect to the same subject-matter, the latter is under the control of the same statute bar with the former. In Buswell on Limitations, (page 193,) it is stated that the ancient action of account was the remedy provided in cases where there was a privity between the parties as against a bailiff or receiver, or a privity in law as against a guardian in socage. Further on it is also stated that the period of limitation to an account is, either by construction or statute provision, made the same in equity as at law. In an early case the lord chancellor was of opinion that "where one receives the profits of an infant's estate, and, six years after his coming of age, he brings a bill for an account, the statute of limitations was a bar to such a suit, as it would be to an action of account at law," and cited Lockey v. Lockey, Prec. Ch. 518. The administration of trusts falling within the peculiar and exclusive jurisdiction of courts of equity, the doctrine is established that as between trustee and cestui que trust, so long as that relation subsists, the trust cannot be affected by the statute of limitations; but where the relation is no longer admitted to exist, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties, or other circumstances, give rise to presumptions unfavorable to its continuance, courts of equity will refuse the relief, upon the ground of lapse of time, and inability to do complete justice between the parties. The equitable principle upon which the general doctrine is founded is thus stated by Lord Redesdale: "If a trustee is in possession, and does not execute his trust, the possession of the trustee is the possession of the cestui que trust; and, if the only circumstance is that he does not perform his trust, his possession operates nothing as a bar, because his possession is according to his title." Hovenden v. Annesley, 2 Schoales & L. 633; Busw. Lim. & Adv. Poss. 457. There is authority for the statement that upon the ward's arriving at his majority, or at least upon his settlement with the guardian, the limitation begins to run, as between guardian and ward. Mason v. Johnson, 13 S. C. 20; Jones v. Jones, 91 Ind. 378. After a ward becomes of age, the fiduciary relation of guardian and ward ceases, and the parties are in relation of debtor and creditor, and the claim of the ward is within the statute. Busw. Lim. & Adv. Poss. 474, and cases cited. The distinction runs through all the cases that the mere retention of the funds furnishes no grounds to assume the title thereto in the trustee, inasmuch |