In re Flynn — 48 N.Y. St. Rep. 816

Majority

p. 816

In the Matter of the Application of John W. Flynn and Charles Travis, to open the Decree made on the Final Settlement of the Accounts of Charles Leach, as Guardian of Lettie Leach Brown.

(Supreme Court, General Term, Third Department,

Filed November 22, 1892.)

Headnote

«Guardian and ward—Final accounting—Error in interest account— Opening decree.

Where, in a final accounting by a guardian, he charges himself with interest on moneys before received, and upon a larger amount than he received, and upon the full amount from its receipt until the accounting, when in fact the greater portion was paid out shortly aft.r its receipt, thus making a balance due his ward, for which she sued his bondsman, Held, that the error in the interest account was sufficient to justify the surrogate in opening the decree granted on such accounting.

Appeal by Lettie Leach Brown from the order of the surrogate of Saratoga county, setting aside and vacating his former decree, settling the accounts of Charles Leach, as the guardian of Let-tie Leach Brown, and the accounting upon which said decree was granted, on the ground of fraud in said, accounting on the part of •said guardian and ward.

The application to open the decree was made by the purchasers at partition sale of land formerly belonging to one of the bondsmen of the guardian, and against whom proceedings had been commenced for a sale of said real estate to pay the amount found due by the decree.

Various grounds for opening the decree were submitted, among them that the guardian in his account charged himself with interest to the date of the account, although the moneys had long since been paid out; that he transferred all his property, and became impecunious, and that such accounting was collusive and fraudulent.

C. H. Sturges ( Winsor B. French, of counsel), for app’lt; Edgar T. Brackett, for resp’t.

I think the order of the surrogate opening the -decree should be sustained.

For the purposes of this appeal it is not necessary to discuss all the items of the guardian’s account, or to settle what should or should not be allowed upon his accounting; a brief Reference to one or two considerations will suffice to show that there was something radically wrong in the first accounting.

It appears from the case before us that the guardian received or was chargeable with $3,174; that of the amount received by him, $1,600 was received September 22, 1877, $519 April 1, 1878, and’ $760.57 April 9, 1879, and that in 1882 he received $320 for wood sold and for a right of way. It will be noticed that these sums slightly exceed the total sum, $3,174, with which he has been charged.

In making up his interest account he is charged interest upon $2,119, from July 23, 1877............ $1,609 25

Upon $735, from April 5, 1879............"....... 491 20

Upon $320, from January 1, 1882 ................ 153 60

Total.................................... $2,254 05

p. 817

The first item, it will be observed, commences before he received the money, and' upon a larger aihount than he received that year. . Dow, while he is charged for interest upon the full amount that came into his hands from the time, or before the time, of its receipt down to the time of his accounting,° it appears from the case that, as a matter of fact, the greater portion of the money received by him was paid out shortly after he received it upon a mortgage on his ward’s farm, as follows:

October 1, 1877. $1,500 00

April 1,'1879.. . 105 00

May 5, 1879.... 9Ó0 00

April 1, 1880... 75 00

April 11, 1880.. 139 60

June 29, 1880 180 00

August 21, 1881 300 00

Either he should not be charged with the interest after he had paid the money on the mortgage, or else he' should on the other hand be credited with interest upon the amounts he paid on the-mortgage from the time he made the respective 'payments.

It may be that the guardian, being a tenant "by the curtesy of the' real estate upon which the mortgage was a lien, was legally liable to pay a portion df the mortgage personally, but how much his share would 'be, if any, it is not necessary to determine; in any event, the ward would have to pay a portion, if not all of the mortgage, and in the"event of her father’s inability to pay his proportion, it would be her guardian’s duty, where the property was worth more than the mortgage, to save the property to her by paying the mortgage out of moneys in his hands belonging to her. The mortgage was due; the tenant by the curtesy impecunious. The guardian received $1,600 September 22, 1877: October 1, 1877, he paid $1,500 upon the mortgage, yet he is charged interest upon the full amount received by him down to the time of settling his account, but receives no credit for interest upon the amount paid by him on the mortgage. „

” Without considering any of the.other questions, I think the error in the interest account alone was so serious as to justify the surrogate in opening the decree.

Let the order of the surrogate be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.