In re the Final Accounting of Gill — 10 N.Y. Sup. Ct. 20

Majority

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In the Matter of the Final Accounting of JAMES GILL, General Guardian of CATHARINE McGLOWAN.

Headnote

General guardian—final aecmnttng — when vouchers required—settlement with ward.

Where a guardian is compelled to account, the same rule is applicable to him as to an executor or administrator. No payments, exceeding in amount twenty dollars, should be allowed, except upon the production of the proper vouchers. The appellant was appointed general guardian of Catharine McGlowan, who died in 1872, being at the time of her death twenty-two years of age. After she came of age, the accounts of the guardian were shown to and examined by her, and she then admitted their correctness and expressed an intention of giving a receipt to him. Subsequently she called at his store but did not find him. Held, that there was not a consummated settlement between the wárd and the appellant, nor such an expression of satisfaction with his accounts as to preclude her administrator from challenging them.

Appeal from an order of the surrogate of the county of New York, made on the final accounting of the appellant, James Gill, as guardian of Catharine McGlowan.

W. A. Beach, for the appellant.

John M. Robertson, for the respondent.

The appellant was appointed general guardian of Catharine McGlowan, in the early part of the year 1868. Catharine McGlowan died in February, 1872; and at the time of her death was, or claimed to be, twenty-two years of age, or thereabouts. The account of the guardian was referred by the surrogate of New York to an auditor, who rejected and refused to allow certain items of expenditure, in the account contained, which exceeded twenty dollars in amount, the same not being embraced in the vouchers presented by the guardian, appellant. On this appeal it has been urged that the rejection of the aforesaid items by the auditor was error. I do not think so. The Revised Statutes provide that a guardian can be compelled to account in the same manner as an

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administrator.^[1] By 2 Revised Statutes,^[2] it is provided that on the settlement of an account of an executor or administrator, he may be allowed any item of expenditure, not exceeding twenty dollars, for which no voucher is produced, if such item be supported by his own oath positively to the fact of payment, specifying when and to whom such payment was made, and if such oath be uncontradicted, but such allowances shall not in the whole exceed $500 for payments in behalf of any one estate.

The preceding section requires vouchers to be produced by the executor or administrator, for all debts and legacies paid, etc.^[3] The account of an executor or administrator, and of a guardian, stand by statute on the same footing, and I see no reason for holding that the limitation as to payments, for which no vouchers are produced, does not apply to the account of a guardian, as well as to the account of an administrator. There was evidence before the auditor, which showed that after coming of age, and within a few days before she died, the accounts of the guardian were shown to the ward, and were examined by her, and that she admitted their correctness, and expressed an intention to call and give a receipt to her guardian. It also appeared that she did afterward call at the store of the appellant, but did not find him there, and that she died shortly thereafter. The auditor correctly held that there was not a consummated settlement between the ward and the appellant, and I am of the opinion that the evidence does not show such an expression of satisfaction with the appellant’s account, on the ward’s part, after coming of age, as to preclude her administrator from challenging the account. There were some objections to the auditor’s report, taken by the respondent’s counsel, which do not seem to me to be well founded.

Substantial justice has, I think, been done to the administrator of the deceased. I am for affirming the order of the surrogate, with costs.

Davis, JP. J., and Daniels, J., concurred.

Order affirmed, with costs.

* 2 R. S., p. 158.

† † P. 93, § 55.

‡ ‡ Section 54.