In re Winsor — 7 N.Y. St. Rep. 715

Majority

p. 715

Estate of William Winsor, lately a minor.

Surrogate’s Court, New York County,

Filed December 19, 1886.)

Headnote

Guardian—When mother being guardian entitled to charge for MAINTENANCE OF CHILD

The mother of petitioner, who was his guardian, had limited resources. Held, That in absence of any facts indicating a purpose on her part to relieve her son and his estate from liability to reimburse her for sums expended for his benefit, she was entitled to an allowance for his maintenance from the death of his father.

John A. Mapes, for guardian; H. F. Andrews, for Wm. Winsor.

Richmond Winsor, the father of this petitioner, died intestate in the year 1863, leaving a small estate, whereof his widow, Josephine Winsor the petitioner’s mother, was appointed administratrix.

On November 2, 1885, a decree was entered in this court, whereby the account of Mrs. Winsor, as such administratrix, was judicially "settled and determined. That account showed that on May 1, 1886, she paid over to herself, as her son William’s general guardian, his share and interest in his father’s .estate, then amounting to $1,909.94.

William attained his majority on May 13, 1883, and on November 24, 1885, filed a petition praying that his guardian be cited to account. An account was filed by her on December 11, 1885.

Objections were subsequently interposed thereto, and the issues thus raised were submitted to a referee, whose report is now before me on a motion for its confirmation."

First. The guardian stands charged in her account with the above named sum of $1,909.94, and with $1,238.88 interest in addition, in all with $3,148.82. By his second objection, the petitioner claims that this statement is not an accurate statement of the moneys received by the guardian for his benefit. The referee has overruled this objection and the petitioner has excepted. This exception must be sustained.

The evidence establishes to my satisfaction that the moneys which came to the hands of the guardian from

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her husband’s estate have ever since remained intact; that with the accumulations thereon they amounted, at the time of their reinvestment in 1882 or 1883, to $3,666.66; that with such amount, together with the interest which the new investment has yielded from January 1, 1883, to the date when the decree herein shall be entered, the respondent must by such decree be held chargeable.

_ In view, however, of the limited extent of her resources since the death of her husband, the unremunerative results of the business in which she has been engaged for her own support and that of her son, and the absence of any facts indicating a purpose on her part to relieve the petitioner and his estate from liability to reimburse her for sums expended for his benefit, she is, in my judgment, justly entitled to an allowance for past maintenance. Matter of Bostwick, 4 Johns. Ch., 100 ; Wilkes v. Rogers, 6 Johns., 566 ; Matter of Kane, 2 Barb. Ch., 375 , 381; Marring v. Coles, 2 Brad., 349 ; Bruin v. Knott, 9 Jur., 979; Voessing v. Voessing, 4 Red., 360; Brown v. Bedford, 4 Deni., 304, 310; Furman v. Van Sise, 56 N. Y., 435 ; Beardsley v. Hotchkiss, 96 id., 201, 219; Hyland v. Baxter, 98 id., 610, 614.

The credit claimed by her in this regard is not, under all the circumstances, unreasonable. It is, therefore, allowed.

So also is the amount which the referee in his third finding has held to be chargeable against the petitioner for moneys advanced him by his guardian. The latter should be charged with the sum for which the referee in his fourth finding has found the petitioner entitled to credit.

The report of the referee, with such modifications as I have indicated, is confirmed.