In re Van Derzee — 56 N.Y. St. Rep. 157

Majority

p. 157

In the Matter of the Application of Edmund Van Derzee.

(Supreme Court, General Term, S cond Department,

Filed December 1, 1893.)

Headnote

Limitation—Guardian’s accounting.

The relation existing between guardian and ward, after the latter be

p. 158

comea twenty-one years of age, is that of debtor and creditor, and the six years’ statute of limitations is applicable to the guardian’s subsequent accounting.

Appeal from a decree of the surrogate dismissing the application of appellant to compel the respondents to file an account of their decedent as general guardian of the appellant.

Hobert F. Andrews, for app’lt; De Groot, Rawson & Stafford, for resp’t

This is an appeal from a decree of the surrogate of the county of Eichmond, dismissing the application of the appellant to compel the respondents to file an account of the proceedings of their decedent as general guardian of the appellant. The appellant Vanderzee presented a petition to the surrogate of Eichmond county in which he stated among other things that he was thirty-four years of age ; that on the 13th day of January, 1864, letters of guardianship were granted by the surrogate of Eichmond county to John H. Yan Cleef in said county, appointing him general guardian of the person and estate of the petitioner.

That John H. Yan Cleef died on the 22nd day of January, 1892, at Port Eichmond, in said county, without having made any settlement of his accounts as such general guardian of the petitioner, that Yan Cleef left a last will and testament which was admitted to probate by the surrogate of Eichmond county, and on the 18th day of March, 1892, letters testamentary were granted thereon to Melville E. Wygant, John Croak and Lewis Kloss. Then the petitioner prays that a citation may be .issued to such executors requiring them to show cause why they should not, as executors of the last will and testament of Yan Cleef, render a judicial settlement and account of his proceedings as general guar.dion of the petitioner.

The executors answered the petition denying the allegation in the petition, that the guardian Yan Cleef died without having rendered and settled his accounts as such general guardian, and alleging on the contrary two several accountings by him, one on the 15th day of January, 1869, and the last on the 14th day of June, 1875, in which he fully accounted for all the matters concerning his guardianship. They then stated that the petitioner ought not to maintain this proceeding because more than ten years have elapsed after the petitioner became of full age, and before the death of Yan Cleef, and because more than twenty-nine years have elapsed since the original appointment of the guardian..

When the matter came before the surrogate he made a decree denying the application of the petitioner, and it is. to be gathered from the language of the decree that his decision was based upon the statute of limitations, or in other words, that he decided that the right to the relief was barred by the ten years statute, inasmuch as more than that time had elapsed since the petitioner became twenty-one years of age. From the date stated in the petition it is to be gathered that Yan Derzee became of full age on

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the 15th day of June, 1879, when he could have maintained the action against Van Cleef as guardian for the settlement of his accounts or for the money in his hands if any remained at that time.

That being so, the relations existing between the petitioner and his guardian from that time was that of debtor and creditor, and the six years would apply because such an action would be based upon an implied contract to pay over money belonging to the plaintiff.

Our conclusion is that the' surrogate properly applied the statute of limitations to the proceeding, and his decree should be affirmed, with costs.