Diaper v. Anderson

| N.Y. Sup. Ct. | May 12, 1862

By the Court,

Emott, J.

The surrogate’s court, being a court of special statutory jurisdiction, can exercise no other authority than such as is expressly given to it, or such as is necessary to the use of the powers, or the discharge of the duties, conferred upon 'it by the statutes. Although the surrogate is authorized to appoint guardians for infants, this power of appointment alone would- not confer the additional power to compel them to account, or to control their proceedings. Section 10 of the statute of guardians, (2 B. 8. 152,) however, provides that any guardian appointed by a surrogate may be cited to account before such surrogate, ip the same manner as administrators, and that upon good cause shown any such guardian may be compelled to account, in the same manner as an administrator ; and that when a ward arrives at full age he shall be entitled to compel such account, without showing any cause. An executor or administrator may be required to account, by the surrogate, after eighteen months from his appointment, at the instance of any person having an interest in the estate, as next of kin, legatee or creditor. The statute directs what proceedings shall be had upon such an accounting. As after the expiration of eighteen months from his appointment an administrator may be compelled to pay the claims of the creditors and next of kin, the accounting thus obtained will terminate in a decree for payment of the whole or a proportionate part of the claim of the party by whom the administrator is cited, according to the assets disclosed upon the accounting. The administrator may, if he choose, bring in all the parties interested and have a final accounting, and then the decree includes and provides for the payment of all claims upon the estate. There is however no power to compel an administrator to render an account otherwise than in the manner and at the period thus indicated, except in the case of his removal for some of the causes, or in some of the modes, pointed out by the statutes. In such cases he may be compelled to account, and upon accounting to pay and deliver the assets to his successor. An accounting by an administrator, it will therefore be seen, can only be compelled with a view to the payment of some party interested in the estate, or to "the delivery of the assets to a successor, upon the determination of his office. There is no provision for successive or ad interim accounts by an administrator ; nor can he be compelled to exhibit the condition of the estate, except as incidental to the payment of claims upon the estate when they have become due, or to his own removal and the appointment of a successor upon proper cause ' shown.

In the case of a guardian there is this difference, that he is required by statute to file annual accounts of his guardianship, and he may be compelled by the surrogate to make any such account, when filed, more full and satisfactory. If he fail to do so he may be removed from his guardianship, upon due notice and proper proceedings. (2 R. S. 153, 3d ed. Laws of 1837, ch. 460.)

When a guardian has been removed, he may be required and compelled to account, and so he may where he is allowed to resign. (Laws of 1837, ch. 460, §§ 50, 54.) In either of these cases, and also when his trust is terminated by the arrival of his ward at age, the accounting will necessarily include a decree settling the accounts, and directing the payment» of the balance or the delivery of the assets. These cases are analogous to the accounting which may be required of an administrator, at the expiration of the period when he may be required to close his trust and settle the estate, or in cases where he has been removed .or superseded. In Seaman v. Duryea, (10 Barb. 525; 1 Kern. 324,) it was held that where a guardian had been superseded he might be required by the decree of the surrogate to pay over to his successor the funds ascertained upon accounting to be in his possession, and that such payment might be compelled by attachment. It is obvious, however, that this case is not parallel with the present. Here there has been no decree had, nor even any proceeding instituted for the supersession or removal of the'guardian ; and as the ward is not of age, no decree can be asked for the payment of any money to any one, or even for the final settlement of the account. The analogy which Judge Bbqwu points out between the proceedings in the case of administrators and those in the case of guardians is strong, and his reasoning is conclusive, that guardians should be compelled to pay over the funds in their hands, in the same manner as administrators, when a period or occasion arises, or the per-. sons are ascertained to receive them. All this is no doubt involved in an accounting in such cases, and the power to direct and compel payment of the final balance to the persons entitled to demand it, is included in the power to compel an accounting.

But in such a case as that which is brought before us by this appeal, the analogy between these two classes of proceedings is not of any avail. The present appellant was and still continues the guardian of the respondent Elizabeth Anderson. He had not complied with the statute requiring annual accounts. The husband of the ward filed a petition stating this fact, and also that the guardian was insolvent, as was one of his sureties, and that the estate was in jeopardy. The petition, however, did not ask the removal of the guardian, nor that he shojild be compelled to give fresh security, but only that he should be required to account. The guardian having been cited to render an account, appeared and filed accounts and an inventory. The respondents were then allowed to surcharge and falsify this account, and testimony was taken on both sides. Finally the surrogate made a decree settling the account, but not removing the guardian, because no proceedings had been instituted for that purpose ; nor directing the payment of any moneys to the ward, because the period for that had not arrived, and no payment was asked. From this decree the guardian has appealed.

In Westervelt v. Gregg, (1 Barb. Ch. R. 469,) Chancellor Walworth held that even after the time for payment of legacies and debts has arrived, if a person entitled to a legacy or share of an estate presents a petition asking for an account by the executor, without also asking for payment, the surrogate’s jurisdiction is exhausted by compelling the executor to render the account, and he cannot proceed to its settlement, unless the executor asks for a final settlement of the estate.

The present is a case where no farther proceeding is contemplated by the parties, or allowed by the statute, than rendering or exhibiting an account. To this the respondent is entitled under or in consequence of the special provisions of the statute requiring annual accounts. Were it not for these it is difficult to see how an account could he required, and still less settled, by any tribunal, except as incidental to the termination in some way of the guardian’s trust. The provisions for annual accounts do not contemplate the settlement of those accounts. They are intended to inform the ward and the court of the manner in which the guardian is discharging his trust. The ward or the court may act upon the information thus obtained, to remove the guardian, or to obtain farther security for his performance of his duties. But I find no provision in the statute for a judicial examination and settlement of the guardian’s accounts, either at the instance of the ward or the guardian, while the guardianship still continues and is intended to continue.

[Dutchess General Term, May 12, 1862.

I am therefore of opinion that the surrogate exceeded his jurisdiction in the decree which he made in this case, and that it should be reversed with costs of the appeal.

All the judges concurred in this opinion.

Bmott, Brown, ScrugJum and Lott, Justices.]