In re Camp — 21 N.Y. St. Rep. 308

Majority

p. 308

In the Matter of the Petition of Mary Ella Camp for an Accounting by Caroline B. Camp, her General Guardian. In the Matter of the Petition of William C. Camp for an Accounting, etc. In the Matter of the Petition of Julia Adelaide Tibbetts for an Accounting, etc.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

Guabdian—Liability of—Statute of limitations

That over six years have elapsed since the children became of age .will not bar a petition to compel the guardian to account, where the guardian had kept the fund entirely separate from his own individual money and property, and had never informed his wards of its existence, and had in no way repudiated or attempted to terminate the trust. The statute would only begin to run from, the repudiation of the trust.

Appeal from decrees of the surrogate’s court of Kings •county requiring the guardian to file his inventory and account.

Nelson Cross, for app’lts; Jennings & Bussell, for resp’ts.

The facts involved in the consideration of this appeal are uncontradicted. Calvin B. Camp, was appoined general guardian for his three children, in February, 1868. No inventory was ever filed. The children became of age, two over ten years before this proceeding was commenced to compel an accounting, and one over six and under ten years before the petition for an accounting was filed.

The petition was filed in the surrogate’s court, which • appointed the guardian. It was based upon section 2817, •Code, which provides that the petition may be presented by the ward after he has arrived at majority.

The surrogate ordered the guardian to account, and this appeal is brought to reverse the order, by reason of the lapse of time since the infants, severally, arrived at the age of twenty-one years. When the guardian received the moneys of the infants, it was his duty to invest the same, in his name, as general guardian for the infants. In contemplation of law, the fund at all times remained invested as was required by law, and in a situation to be delivered over. The guardian had no personal title. lie held as trustee for the infants, and until he repudiate the trust, or in some way claimed a title to the fund in defiance of it, there was no beginning of the running of the statute of limitations. Reitz v. Reitz, 80 N. Y., 538 ; Mabie v. Bailey, 95 id., 206.

No importance can be attached to the arrival of age of any

p. 309

of the beneficiaries. The general guardian could have terminated the trust, but he did not. He even kept all knowledge from the beneficiaries that there was any property belonging to the trust. This gave him no title to theproperty which was “ being kept entirely separate from the individual money and property of the guardian.” Seaman v. Duryea, 11 N. Y., 324 .

There could not then be a time when the hostile position ■of the guardian, in respect to the fund, could set in motion the statute of limitation, until express repudiation to the beneficiaries. In such case the statute would begin to run from the repudiation of the trust. Boughton v Flint, 74 N. Y., 476 .

The order should, therefore, be affirmed, with costs.

All concur.