19 Barb. 30 | N.Y. Sup. Ct. | 1854
By the Court,
It does not distinctly appear, from the decree, upon what ground the surrogate based his decision dismissing the proceedings before him. , The great and serious question in the case, however, is, in my judgment, whether he had any power to call the respondent and her co-administrator to such an accounting as was prayed for in the petition. It has often been remarked, and decided, that the surrogate’s court is entirely a creation of the statute, and that the surrogate can exercise no pow;er or authority except such as is expressly conferred upon him by the statute. It will be necessary, in considering this question, to review some of the sections of the statute, under w'hich it is claimed this accounting can be required.
Sec. 6, 2 Rev. Stat. 151, clothes the surrogate, when application is made, with the same power to allow and appoint guardians as is possessed by the supreme court; and in all cases he is to inquire into the circumstances of the minor and the value of his estate. Sec. 7 directs him, before appointing the guardian, to require of him a bond with sufficient sureties, conditioned that “ such person will faithfully in all things discharge the duty of a guardian to such minor, according to law, and that he will render a true and just account of all moneys and property received by him, and of the application thereof, and of his guardian
It is to be remarked here that the condition of the bond is that he, (the guardian,) not his representatives, shall account when thereunto required.
Sec. 9 directs the surrogate to keep the bond among the papers in his office, which may be prosecuted in the name of the ward whenever the surrogate shall direct. Sec. 10 gives to every guardian so appointed the same powers as testamentary guardians. Sec. 11 provides that “ any guardian, appointed by any surrogate, may be cited to account before the surrogate who appointed him, in the same manner as administrators, upon the application of any ward or relative of any such ward, and on good cause being shown, may be compelled to account, in the same manner as an administrator. And upon a ward arriving at full age he shall be entitled to compel such account without showing any cause.”
By section 12, every guardian whose ward has arrived at full age, and every guardian who shall be superseded in his trust, may apply for a citation to attend the settlement of his accounts, and by section 14, any ward, or relative of such ward, or any surety, may apply to the surrogate, on the ground of incompetency or misconduct, for a citation to the guardian to show cause why he should not be removed. And when a removal is made, the surrogate is to proceed, by section 17, and appoint a new guardian in the same manner as if no guardian had been appointed.
Section 24 of the Laws of 1837, ch. 660, (2 R. S. 4rth ed. p. 137, § 45,) provides for the case of insufficient sureties, or where they are becoming insolvent or are about to remove from the state. The surrogate is to cite the guardian to show cause why he should not procure new sureties. When, any guardian is removed in such cases he may be required to account immediately, in the manner required in the 11th section. Sections 29 to 34 inclusive regulate the proceedings where a guardian applies to resign his trust. By section 35, every guardian is required to file an annual account and inventory under
Now it is to be observed, that in none of these sections or provisions is the surrogate authorized or empowered to call the executors or administrators of a deceased general guardian to account. The statute, throughout, only speaks of the guardian, and in no case of his representatives. The condition of his bond is that he (not his representatives) shall at all times render an account, whenever lawfully required. He is created and treated, in and by the statute, as the trustee of his ward. He is safely to keep the things he may have in his custody, belonging to his ward; he shall not make or suffer any waste, sale or destruction of such things, nor of the inheritance; he shall keep up and sustain the houses, gardens and land by the issues and profits or other moneys in his hands, and shall answer for the rents and profits of the real estate by a lawful account. (2 R. S. 113, § 20.) He may resign his trust, setting forth his reasons, and complying with the requisitions of the statute. (Laws of 1837, ch. 460, § 51.) The administrator has no right to take possession of the estate of the ward. The personal estate belonging to him forms no part of the assets of the intestate coming to his hands. But the surrogate, on the application of the infant, can alo?ie appoint a new guardian in the manner prescribed by the acts before cited. In such case there is no power in the new guardian to call the representatives of the deceased guardian to an account, although he may call his predecessor to account, Avhere he has been removed for the causes already alluded to. The administrators, as just remarked, have no control over, and no right whatever to take possession of, the estate of the ward. His effects are no part of the assets belonging or coming to the hands of the administrators. The creditors or next of kin have no right to appoint the successor of the guardian, which they might do if the administrator represented the guardian, as respects the ward’s estate. The only case, that I can find, where the representatives of the de
It is argued that there is no remedy, if the present proceedings are not sustained. I do not concur in this view. The relief is to be obtained by complaint in a court of equity. (1 Barb. Ch. Rep. 565, 568. 3 id. 341.) The case in 3 Hill, 77, deciding that sureties cannot be prosecuted till after an accounting, is not in point to sustain the position of the appellant’s counsel. That was a case of the prosecution of a bond given on the appointment of a guardian to sell the real estate of an infant, under the act of 1815, where the accounting was to be had under the direction of the chancellor; and the court decided that the declaration should show that there had been proceedings against the guardian, in chancery, and the remark fell from Judge Bronson that if an account had “ not been taken in the lifetime of the guardian, his personal representatives might be required to account; or if there was a difficulty in pursuing that course, the plaintiff must make out a special case showing the necessity of a suit on the bond.” The difficulty here is, that a court of limited and special jurisdiction, acting under the powers expressly delegated to it, cannot go beyond them, and that no provision is made or jurisdiction created for the present case. The court do not remark or decide that the accounting may be had in the surrogate’s court, but say it must be made in a court of general jurisdiction, hi or do they determine that the remedy on the bond is gone, unless an accounting be first had. The chancellor decided otherwise in Cuddeback v. Kent, (5 Paige, 92.) The case of Stilwell v. Mills (19 John. 304,) only decides that where a bond is taken pursuant to the statute, an action at law cannot be maintained on the bond until the guardians have been called to account in the court of chancery. That “ a guardianship is a trust, and it peculiarly and exclusively belongs to the chancellor.”
Whether a suit on the bond may be maintained before accounting, or not, it is not necessary in the present case to
Hand, Cady, C. L. Mien and.James, Justices.]
