Stilwell v. Mills — 19 Johns. 304

Majority

p. 304

Stilwell and Wife against Mills, impleaded with others.

Headnote

Where on the aPguardian1 ”0 the 'surrogate^ sureties'1 to'1theP3tatute,t perfomancefof the guardianship, and to ^nder^m ac-action at" ¡aw maintained on the bgutrd1ans i^d to Ycrount Chancery,urtto risdictionh6as té such a trust, exclusively belongs.

THIS' was an action of debt' on a bond given by the defendants, on the appointment of Mills and Ludington, as guardians of the wife of the plaintiff, when she was a sole. She was the daughter of L. and being about 15 years of age, the Surrogate of Onondaga, on the 6th December, 1813, appointed L. and M. as her guardians, pursuant to the statute. The bond was for one thousand a . dollars, conditioned; that L. and M* should, in all things, duly discharge their duties as guardians of the infant, and render a just and true account of such guardianship, before any Court having cognizance thereof, when thereunto required. The plaintiffs were married in November, 1815. The declaration alleged that the plaintiffs, afterwards, ^emanc*e^ D- and M. an account- of their guardianship, and of the property of the wife, in their hands, whicli they r r „ J refused to render, &c.

There was a demurrer to the declaration, and joinder in demurrer, which was submitted to the Court, without argument.

It does not appear that the accounts of the guardianship have been settled by the parties, or that any proceedings have been had before the Chancellor, requiring an account of the guardians. Until the accounts are' thus settled, an action cannot be sustained on the bond. A guardianship is a trust, and it peculiarly and exclusively belongs to the Chancellor. (1 Madd. Ch. 269., and the cases there cited.) A guardian must first be called to account, before the surety is liable. 1 Johns. Ch. Rep. 607 .

The Chancellor is authorized to make allowances to the guardian, and that Court has every facility for finally adjusting the trust; whereas, in a court of common law, it would be extremely unfit to submit the accounts to the decision of a jury or referees; The true effect of the condition of the bond, is to render an account in the Court of Chancery

p. 305

and as this has not been required, the condition of the bond is not violated.

Judgment for the defendant.