Ackerman v. Ackerman — 26 N.Y. St. Rep. 666

Majority

p. 666

Elizabeth Ackerman, Guardian, Resp’t., v. Henry C. Ackerman, App’lt.^[1]

(Court of Appeals, Second Division,

Filed October 8, 1889.)

Headnote

Guardian and Ward — Decision oe surrogate on accounting, when conclusive.

On an accounting of a general guardian in which he credited himself with having paid board for his ward, the surrogate found that “ nothing in fact was ever paid for board by said guardian,” and also “that said guardian made the following expenditures and no other for his ward from year to year.” Held, that as the case is not wholly without evidence, to support the” findings, their correctness cannot be questioned in this court.

Appeal from a judgment of the supreme court, general term, fifth department, affirming a decree of the surrogate’s court of Wayne county.

Henry 0. Ackerman was appointed general guardian of Prudence L. York, a minor, on the fifth day of February, 1867, and continued to act as such until 1883, when the respondent was appointed in his place and an accounting thereupon demanded. The appellant having filed his account as such guardian, objections thereto were duly made, and a trial had before the acting surrogate, who found as matters of fact^[1] That during said Henry 0. Ackerman’s said guardianship, said Prudence was boarded in the family of her mother and Charles Ackerman,her stepfather, a portion of which time Henry 0. Ackerman’s family lived together and a portion of the time separately; that there was no express agreement that said Prudence L. York should be chargeable for her board while so living in either of said families; that she rendered valuable service in said families, but there was no express agreement that said services should be paid for; that she lived as aforesaid in said 'families as one of the family, rendering services therein, upon the mutual understanding that nothing should be paid or chargeable either for board, upon the one hand, or services upon the other, but that both should be gratuitous, and nothing in fact ever was paid by said guardian for her board in said families; that said guardian made the following expenditures „ and no other for his said ward from year to year * *

Upon the findings made a decree was based disallowing the ' claim for board and adjudging the sum of $2,006.02 to be due the ward from Henry C. Ackerman. The general term affirmed the decree thus made and an appeal was thereupon taken to this court.

T. W. Collins, for app’lt; J. W. Dunwell, for resp’t.

The contention of the appellant that Charles S. Ackerman rested under no legal obligation to maintain his stepdaughter, Prudence L. York, cannot be gainsaid. Williams v. Hutchinson, 3 N. Y., 312 . Neither can it be questioned but that

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the general guardian had the legal right to have contracted with the step-father for the support and maintenance of his ward, and that such reasonable sum as should have been in good faith paid for that purpose would have been allowed upon the final judicial settlement of the accounts of the general guardian. Hill v. Hanford, 11 Hun, 536 .

But that rule cannot be made available to the appellant for a reversal in this case.

The question before the surrogate’s court for adjudication was the account of Henry G. Ackerman as general guardian of Prudence L. York. The proposition which that court was obliged to pass upon was: To what extent had the guardian within the bounds of his duty expended the funds held in trust by him? He claimed to have laid out a portion of the money each year for clothing, books, etc., and to have paid the residue coming into his hands for board.

As to his claim for board, it was insisted on the part of the ward, first: that the guardian ought not to be allowed for moneys paid her step-father for board because, as alleged, it was agreed that nothing should be charged, and also because she rendered services equal in value to that of her board, and second: that the general guardian had not paid or agreed to pay for her board.

Had the trial court found payment by the guardian to the stepfather, as claimed, but refused to allow the item because of the objection first raised, there might have been presented a question calling for the application of the legal rules insisted upon by the appellant. The contest, however, resulted in a finding of fact by the court that “ nothing in fact was ever paid by said guardian for her board in said families or either of them,” and also “ that said guardian made the following expenditures and no other for his said ward from year to year.”

The list of expenditures referred to as constituting a part of the finding did not contain an item for board. These findings were affirmed by the general term, and as the case is not wholly without evidence to support them, their correctness cannot he questioned here. Hewlett et al. v. Elmer, 103 N. Y., 156 ; 3 N. Y., State Rep., 1.

Standing then unchallenged as such findings of fact of necessity do, in this court, there remains no basis upon which to question the decree founded thereon.

The judgment appealed from should be affirmed, with costs.

All concur, except Bradley and Haight, J. J., not sitting, and Vann, J., not voting.