In re Camp — 57 N.Y. Sup. Ct. 388

Majority

p. 388

In the Matter of the Petition of MARY ELLA CAMP for an Accounting by CALVIN B. CAMP, as her Guardian. Matter of the Petition of WILLIAM C. CAMP, etc. Matter of the Petition of JULIA A. TEBBETTS, etc.

Headnote

Accounting by a general guardian — the statute of limitations does not run until he repudiates the trust.

Upon an appeal from an order of the surrogate ordering Calvin B. Camp to account, it appeared that he had been appointed the general guardian for his three children in February, 1868, and that no inventory was ever filed; that two of the children became of age over ten years and one over six years before the petition for the accounting was filed.

Held, that, as in contemplation of law the fund remained at all times invested as was required by law, and in a situation to be delivered over, and the guardian had no personal title, he held as trustee for the infants, and until lie repudiated the trust, or in some way claimed a title to the fund in defiance of it, there was no beginning of the running of the statute of limitations, and that no importance should be attached to the arrival at full age of the beneficiaries.

p. 389

Appeal from an order of the surrogate of the county of Kings, made and entered on July 13,1888, requiring Calvin B. Camp to file his inventory and account, with the vouchers in support thereof as general guardian of the persons and estates of Mary Ella Camp, Julia Adelaide Tebbetts and William C. Camp.

Nelson Gross, for Calvin B. Camp, appellant.

Bengamvn F. Traoy and Frederic B. Jennings, for the petitioners, respondents.

The facts involved in the consideration of this appeal are uncontradicted. Calvin B. Camp was appointed general guardian for his three children in February, 1868. No inventory was ever filed. The children became of age; two of them over ten yearsbefore this proceeding was commenced, to compel an accounting, and one of them over six and under ten years, before the petition for an accounting was filed. The petition was filed in the Surrogate’s Court, which appointed the guardian. It was based upon section 2847 of the Code, which provides that the petition may be presented by the ward after he has arrived at majority. ■ The surrogate ordered the guardian to account, and this appeal is brought to reverse the order by reason of the lapse of time since the infants severally arrived at the age of twenty-one years. When the guardian received the moneys of the infants it was his duty to invest the same in his name as general guardian for the infants. In contemplation of law the fund at all times remained invested as was required by law, and in a situation to be delivered over. The guardian had no personal title; he held as trustee for the infants, and until he repudiated the trust or in some way claimed a title to the fund in defiance of it, there was no beginning of the running of the statute of limitations. (Reitz v. Reitz, 80 N. Y., 538 ; Mabie v. Bailey, 95 id., 206.) No importance can be attached to the arrival of age of the beneficiaries. The general guardian could have terminated the trust, but he did not. He even kept all knowledge from the beneficiaries that there was any property belonging to the trust. This gave him no title to the property which was “ being kept entirely separate from the individual money and property of the guardian.” (Seaman v. Duryea,

p. 390

11 N. Y., 324 .) There could not then be a time when the hostile position of the guardian in respect to the fund could set in motion the statute of limitations until express repudiation to the beneficiaries. In such case the statute would begin to run from the repudiation of the trust. (Boughton v. Flint, 71 N. Y., 476 .)

The order should, therefore, be affirmed, with costs.

Pratt, L, concurred.

Decree of surrogate that guardian account, affirmed, with costs. Same judgment in Matter of Petition of ‘William O. Camp and Matter of Petition of Julia A. Tebbetts.