15 N.Y.S. 946 | N.Y. Sup. Ct. | 1891
The facts .in this case, as reported by the referee, and which stand substantially undisputed, are as follows: On the second Monday in January, 1866, Julia C. Carpenter, the mother of the petitioners, presented to the supreme court a petition, properly verified, praying for the sale of 10 acres of land' belonging to the infants, and the appointment of the appellant, William H. Fenton, as special guardian of the infants to repre
With great deference to the court which rendered the foregoing decision, we are constrained to hold, in view of other cases of paramount authority, that the doctrine there stated cannot now successfully be maintained. We do not put onr'deeision upon the ground that there is any difference in the obligations of the special guardian appointed in the case cited, and the obligations of this appellant in proceeding's for the sale of the infants’ real estate; for in our judgment the duties of the special guardian in each instance required of him a faithful performance of a trust imposed, and for the paying over or the investment and accounting for all moneys which he should receive according to the order of the court having authority to give direction in the premises, and for the observance of any order and direction of the court in relation to the trust. Such, in substance, was the condition of the , bond which the guardian was required to enter into with sureties. The bonds in the case cited, and in the case now before us, were in substance the same, and the duties imposed by the order and by the acceptance of the trust were the same. No argument, therefore, based on a difference in the nature of the proceeding, seems to us to be sound. The appellant’s obligation was to receive the money belonging to the infants and invest the same, and pay the income thereof in the manner stated, and the principal to the infants when they should become of full age. In re Camp, 3 N. Y. Supp. 335, it was held, under this statute of limitations, that it was no defense by a general guardian in partition for an accounting tliat 10 years had elapsed sincé, by the order appointing the guardian, he was required to turn the property over to the ward, and that in contemplation of law the fund remained at all times invested as was required by law, and in a situation to be delivered over, and that the guardian held as trustee for the infants only; and until he repudiated the trust, or in some way claimed title to the fund in defiance of it, there was no beginning of the running of the statute of limitations. In re Camp, 126 N. Y. 377, 27 N. E. Rep. 799. See, also, Boughton v. Flint, 74 N. Y. 481; Reitz v. Reitz, 80 N. Y. 538; Mabie v. Bailey, 95 N. Y. 206; Lammer v. Stoddard, 103 N. Y. 672, 9 N. E. Rep. 328. We are of the opinion, therefore, that in the absence of any evidence that the special guardian in this instance had openly and to the knowledge of the beneficiaries renounced, disclaimed, or repudiated the trust imposed Upon him after his wards had respectively become of full age, the statute of limitations hud not begun to run. We" are unable to see that the arrival of the beneficiaries at the age of 21 years is in and of itself, unaccompanied by any assertion of title in himself, a fact of any moment in measuiing the obligation of the guardian. It follows, therefore, that the order confirming the report of the referee must be upheld. Order appealed from affirmed, with costs.