In re the Judicial Settlement of the Accounts of Wiley — 27 N.Y. St. Rep. 804

Majority

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In the Matter of the Judicial Settlement of the Accounts of James Wiley, Dec’d.

(Supreme Court, General Term, First Department,

Filed December 2, 1889.

Headnote

Guardians—Accounting by his administrator.

The surrogate has power to compel the representative of a deceased guardian to render an account of his trust, although less than one year has elapsed since the issuing of letters to such representative, and the mere fact that the guardian dissipated the ward’s estate does not render it proper that extraordinary delay in determining the deficiency should he indulged in.

Appeal from order of the surrogate requiring Laura E. Wiley, as administratrix of James Wiley, deceased, to render an account of the proceedings of the intestate as general guardian of the respondent, Emily L. Middleton.

E. P. Wilder, for app’lt; E. C. Perkins, for resp’t

It appears that James Wiley, deceased, was appointed general guardian of the estate of the respondent by the surrogate of this county; that by his account filed on the 1st

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of January, 1884, he showed himself to be in possession of her estate; that he died on the 23d of October, 1884, and on September 20, 1889, the appellant, Laura B. Wiley, was appointed his administratrix. The respondent attained her majority on the 8tli of November, 1888. The respondent having presented her petition to the surrogate of New York county to compel an accounting, the surrogate on the 26th of September, 1889, issued a citation to Laura B. Wiley, requiring her to show cause on the 10th of October, 1889, why she should not render and settle an account of the proceedings of James Wiley, deceased, as guardian of the respondent. Upon the return of this order the appellant filed an affidavit setting up that she had only received her letters of administration on the 20th of September preceding; that one year had not expired since letters were issued to her, and that by reason thereof the surrogate was without jurisdiction in the premises to compel her to account; that the appellant, since her appointment, had retained counsel to aid her in making diligent search for and to recover possession of the property of the trust estate of which the deceased was guardian; that no portion had come into her hands, but that she believed considerable portions of it might be recovered by proper actions brought therefor.

The learned surrogate, upon the hearing, directed the administratrix to render an account of the proceedings of said James Wiley as general guardian of the respondent, and from the order thereupon entered this appeal is taken. The objection which seems to be urged is that the surrogate had no jurisdiction to compel the accounting, one year not having expired since the issuing of the letters of administration. We think this objection is not well founded, as the right to compel such accounting seems to be distinctly conferred by § 2606 of the Code, where it is provided that the surrogate’s court shall have the same jurisdiction to compel an executor or administrator of the decedent to account which it would have had against the decedent if his letters had been revoked. The word “ decedent ” refers to an executor, administrator, guardian, or testamentary trustee who has died.

Prior to this provision of the code it would appear that there was no way in which such an accounting might be compelled, except by filing a bill in equity, and the cumbersomeness of this proceeding was intended to be avoided by the provision in the Code to which attention has been called. It seems to be clear that it was the intention that the representative of the deceased trustee or guardian might be called upon to render an account of the proceedings of his intestate, where such intestate had been a guardian or trustee, without waiting for the final settlement of the estate of such deceased guardian or trustee. It was simply calling upon the representative of the deceased guardian or trustee to render an account of his trust, and had nothing to do with the general accounting in respect to the whole of his estate.

In view of this provision of the law, there does not seem to have been- any want of power on the part of the surrogate to order the accounting; and the mere fact that the general guardian had dissipated his ward’s estate does not seem to render it proper that

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extraordinary delays should be indulged in in determining the deficiency which may exist.

The order should be affirmed, with ten dollars costs and disbursements.

Bartlett, J. concurs.