In re the Judicial Settlement of the Account of Wiley — 29 N.Y. St. Rep. 787

Majority

p. 787

In the Matter of the Judicial Settlement of the Account of James Wiley, General Guardian, etc.^[1]

(Court of Appeals,

Filed March 4, 1890.)

Headnote

Guardian—Accounting by his executor—Code Civ. Pro., § 2606.

An application for an accounting t>y the executor of a deceased guardian may he made immediately upon the appointment of such executor.

Appeal from order of the supreme court, general term, first department, affirming order of surrogate requiring the administratrix of James Wiley to render an account of the proceedings of her intestate as general guardian of Emily L. Middleton. ■

Wm. J. Lynch, for app’lt; Edward G. Perkins, for resp’t

The case of In re Accounting of Clark, as Executor of Fithian, has just been decided by this court, and not yet reported.^[1]

In that case Clark, the executor of Fithian, had died, and Clark’s executrix had been appointed but the day before the filing of the petition of Mrs. Fithian to compel such executrix to show cause why the account of Clark, as the executor of Fithian, should not be rendered and settled.

We held that the section, 2606, of the Code gave the surrogate jurisdiction, upon the death of an executor, to require his executor or administrator to account for and deliver over the trust estate precisely as if the letters of the deceased executor had been revoked in his lifetime and he had been called upon to deliver up the assets, and that his representative stood in his place for the purpose of such accounting and delivery.

2 29 N. Y. State Rep., 682.

p. 788

While the question, of the precise time within which such accounting could be demanded was not raised in that case, yet we- are of the opinion that the true construction of the section permits the application to be made immediately upon the appointment of the executor of the guardian or administrator, etc.

This leads to an affirmance of the order.

All concur, except Gray, J., not sitting.