1 Pow. Surr. 480 | N.Y. Sur. Ct. | 1893
This is an accounting by' the general guardian -of the infant above named, originallyj compulsory, but converted into a voluntary proceeding. Exceptions are filed by accountant and contestant. On the 8th of duly, 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 six days of ten 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 referep, 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
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 ag'e, 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. Boss. 474, and cases cited. The distinction runs through all the eases that the mere retention of the funds furnishes no grounds to! assume the title thereto in the trustee, inasmuch as such retention is consistent with the character he sustains, and therefore does not excite any suspicion of an intention to appropriate the funds. Although the statute of limitations does not apply directly to technical trusts, yet it has always been held that if a trustee should deny the right of the cestui que trust, and assume absolute ownership of the trust property, he thereby abandons his fiduciary character, and the cestui que trust must commence legal proceedings against him within the statutory .period of limitations. It should appear that the cestui que tp-ust had knowledge of the trustee’s denial, repudiation, or adverse claim, and, that the trustee has not been guilty of fraud: The doctrine that a positive and technical trust is not barred! by the lapse of time is subject to two qualifications, namely, that no circumstances exist to raise the presumption from lapse of time of an extinguishment of the trust, and that no open denial or repudiation of the trust, is brought home to the knowledge of the parties in interest, which requires them to act as upon an asserted adverse title. Busw. Lim. & Adv. Poss. 471. Lkpse of time, without any claim or admission of an existing rjght, coupled with circumstances tending to show that a trust had been executed, may-raise a presumption of its execution, I and, in case of a guardian,
These transactions occurred at or before she attained her majority. “Q. Do you say the same of your account as guardian —the history of your administration up to the 'time when she became of age ?” A. Yes, sir.” At page 78 the ward testified: “My mother always treated me very kindly, but I thought it strange that I never had anything, or any money. After I was of age, I asked my mother about it. I never asked before. Q. What did she tell you when you became of age ? Did she show you tire account? A. No; she only said she spent all upon living.”
It appears by this testimony that subsequent to the attainment of her majority, the guardian and ward had a conversation concerning the accounts of her mother, and the mother stated that she had expended the entire fund. All the other circumstances surrounding the case negative the idea that the,trustee was guilty of any fraud or concealment which would prevent the repudiation from having its legitimate effect. The-accounts were always open to her inspection, and, notwithstanding her statement that she did not examine the same, it is apparent from other portions of the testimony that she knew their contents, and was aware that in some instances her mother had charged against her sums as low as 5 or 10 cents. She could not have known this without, to some extent, having examined the account. I am therefore of opinion that the referee’s- report must be overruled, and the proceedings dismissed, upon the ground that the statute of limitations runs against the claim-.