In re the Judicial Settlement of the Account of Wiley — 2 Silv. Ct. App. 548

Majority

p. 548

In the Matter of the Judicial Settlement of the Account of John Wiley, as General Guardian, etc.

Court of Appeals,

March 4, 1890.

Headnote

Affirming 55 Hun, 248 .

Guardian. Accounting.—An application for the accounting of a representative of a deceased guardian may be made immediately upon his appointment.

p. 549

Appeal from an order of the general term of the supreme court, affirming an order of the surrogate directing an accounting by the administratrix of a general guardian.

Wm. J. Lynch, for appellant.

Edward C. Perkins, for respondent.

The case of In re Accounting of Clark, as Executor of Fithian, has just been decided by this court, and not yet reported.

In that case Clark, the executor of Fithian, had died, and Clark’s executrix had been appointed but the day before the filing of the petition of Mi’s. Fithian to compel such executrix to show cause why the account of Clark, as the executor of Fithian, should not be rendered and settled.

We held that the section, 2606, of the Code gave the surrogate jurisdiction, upon the death of an executor, to require his executor or administrator to account for and deliver over the trust estate precisely as if the letters of the deceased executor had been revoked in his lifetime and he had been called upon to deliver up the assets, and that his representative stood in his place for the purpose of such accounting and delivery.

While the question of the precise time within which such accounting could be demanded was not raised in that case, yet we are of the opinion that the true construction of the section permits the application to be made immediately upon the appointment of the executor of the guardian or administrator, etc.

This leads to an affirmance of the order.

All concur, except Gray, J. not sitting.