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Diaper v. Anderson.

guardian complied with the order and citation by filing an account and producing vouchers, and was examined (on his own behalf) as to items for which he had not vouchers. The advocate employed by the husband of the ward claimed to examine the guardian personally, and then produce witnesses with a view to contradict and surcharge and falsify, and so that the surrogate might give a decree upon the items; and this the surrogate allowed, under exception and objection. He finally made a decree, by which it was ordered, adjudged and decreed that the account of the guardian “ be stated, settled and allowed as hereinafter particularly stated; and that the said accounts as filed by the said guardian are passed, settled and allowed as corrected, extended and otherwise modified by the provisions of this decree hereinafter contained.” The guardian appealed from this decree, under 2 R. S. 610, $ 107, claiming that all the surrogate could do was to require the filing of a first account, and if the party acting for the ward chose to examine the guardian and did so, that there and then the surrogate should have stayed matters until the coming of age of the ward, or until some special misconduct or damage recognized and referred to in the statutes (2 id. 152) was apparent; except that there might have been a requirement of further surety, if evidence showed a present bondsman was insolvent. (Act of 1837, ch. 460, 46.) The surrogate did not make any order for further security. He issued no citation to the guardian to show cause why he should not procure new sureties.

Charles Edwards, for the appellant. I. A surrogate cannot compel an account from a guardian, save under statute. (Matter of Dyer, 5 Paige, 534.) A surrogate can compel a guardian to file accounts periodically. (Statute of 1837, ch. 460, $ 57.) Guardians appointed by a surrogate are, by statute, put in the same category with executors and administrators as to the matters of their accounts. (2 R. S. 152,

Diaper v. Anderson.

$ 11.) And thus we are referred to the statute touching the duties of executors and administrators in sendering an account. (Id. 91, 92.) By § 52, an executor or administrator, after the expiration of eighteen months, may be required to "render an account of his proceedings.By $ 54, in rendering such account,” vouchers are to be produced; and the executor or administrator may be examined on oath touching such payments, and also in relation to any property or effects of the deceased which have come to his hands, and the disposition thereof. Here ends the statute as to " such account.”

II. The only person allowed to be examined in regard to this interim account, this“ rendering an account,” is the executor or guardian; and that fact negatives the idea of bringing forward evidence to conflict with his sworn statement. If a guardian were not enbraced by the act touching executors and administrators, then (as a surrogate is the creature of statute) he could not be examined in relation to items of a mere first account, unless in connection with charges tending towards his dismissal.

III. There can be no issues raised or points litigated on the filing of an ad interim account, either by executor, administrator or guardian. Where opposing witnesses are allowed, an issue is supposed and the spirit of a litigated suit presumed. Such a state of things may occur on a final settlement. The sureties of a guardian would not be liable under any decree based on testimony of conflicting witnesses, where a mere rendering of a first account is demanded, and there has been no allegation of incompetency. (Stillwell v. Mills, 19 John. 304.)

IV. The order in the present case is merely that the guardian“ render an account of his proceedings.” This was done, and vouchers produced, and the advocate acting for the applicant chose to examine the guardian as to items. And this having been performed, the matter should there have ended.

Diaper v. Anderson.

The guardian does not ask to be discharged, and to account; nor is there any application to dismiss him, or any petition for any payment from him ; further security is not even possessed or acknowledged in the surrogate's decree. The examination and cross-examination of witnesses under a first account, can answer no good end; as the ward's rights remain intact until a final accounting and paying over. The power given by the statute to examine an executor or guardian in relation to a first account, must have been allowed merely with a view to secure truthful items and present vouchers, and so that neither might be varied in future years, and also for a chance to discover present fraud, and so that, thereupon, after proceedings might be taken to oust a guardian or executor. We have an exposition of the statute as to this “ rendering an account,” in adjudged cases. (Westervelt v. Gregg, 1 Barb. Ch. R. 478. Smith v. Van Kuren, 2 id. 473. Campbell v. Bruen, 1 Bradf. Surr. R. 224. Bogart v. Van Velsor, 4 Edw. V. C. Rep. 718.) These cases should be conclusive in the present matter.

V. The guardianship had not reached a point where a surrogate could make a decretal order embracing and closing up of items of credit and debit, causing in fact a stated and settled account. There can be no decree of a court as to an amount which cannot be enforced. It is insisted that the ward is not concluded by the surrogate's views upon the items allowed, nor the guardian estopped in relation to sums disallowed, for the time has yet to come when all amounts are to be passed upon. Still, some future surrogate, when the ward has come of age, seeing what his predecessor has done, will look upon the matters passed upon in the present decretal order as stated and settled,

VI. The supreme court will not go into the particulars of an interim account of a guardian, filed in a surrogate's office. It will only pass upon a guardian's accounts, on an appeal from a decree on first settlement. (2 R. S. 13.) The guardian, then, in this case would be remediless as to amounts

Diaper v. Anderson.

disallowed, if the surrogate could bar him by taking up a first account "rendered," and make a decree which would be final.

Mills & Cochran, for the respondents. I. The only question presented upon this appeal is whether, when a guardian is cited by a surrogate to account as such guardian pursuant to section 11 of the statute, (3 R. S. 5th ed. p. 244, § 11,) the surrogate has authority to take the examination of witnesses as to the truth and justice of such account, and to state and settle the same. Does the surrogate's power to “compel an account” involve the power to examine its items and pass upon its correctness, fairness and sufficiency? Does the authority to compel an account mean merely the right to call upon the guardian to file with the surrogate any paper which that guardian may choose to designate as such ? The appellant maintains the affirmative of this latter proposition. He assumes a strict analogy between this proceeding and that taken against an administrator upon the petition of a creditor, and thence falls into the further error of supposing that it is necessary in the petition in this matter, (as in the case of a petitioning creditor,) in order to entitle the infant to a statement and settlement of the guardian's account by the decree of the surrogate, that the infant should pray, or be in a position to pray, that the balance ascertained be paid over. The case of Seaman v. Duryea, (10 Barb. 525; S. C., 1 Kernan, 324,) establishes that a prayer for payment, or for any thing beyond an account, is not necessary in the petition, nor is any allusion to payment required in the citation, to give to the surrogate jurisdiction under this statute, not only to state and settle the account and ascertain the balance due, but even to decree the payment of the balance so ascertained. Justice Brown, in that case, very satisfactorily shows why such a course is not necessary, and points out the distinction between the cases of an administrator and a guardian. (See opinion of Justice Brown at page 529.)

Diaper v. Anderson.

II. The appellant concedes that if the ward were of age she might falsify and surcharge the account, and that the surrogate would then have authority, by virtue of his power, to "compel an account," to state and settle it, and even to direct the payment of the balance found to be in the guardian's hands. He cannot well dispute that proposition, and yet its concession yields the whole case. The same section of the statute provides for the very same accounting, whether the ward be of age or not. Section 11 provides, in the first place, that the guardian may be “cited to account” at any time by the ward or a relative, and upon cause shown may be compelled to account in the same manner as an administrator, and then proceeds to declare that “upon the ward's arriving at age he shall be entitled to compel such account without showing any cause.” The accounting thus compelled is the same in both cases, except that in the one, cause is required to be shown, and in the other, not. Section 28 of the same statute also provides for the same accounting, and no other, when a guardian has been removed.

III. While the accounting is the same, the decree which the surrogate makes thereon will necessarily depend upon the age of the ward, and the relations of the guardian and ward. If the accounting takes place before the ward is of age, then the surrogate, by his decree, must settle and state the account, ascertaining and adjudging how far it is “just, full and true.” If the ward has arrived at age, or a new guardian has been appointed, then the surrogate goes further, and decrees the payment over of the balance so ascertained. If there were no decree of the surrogate upon the account which he has compelled, then the whole proceeding is the barest farce, and his supervisory power the very shadow of authority. What useful end is accomplished unless a settlement to the time of the accounting is had, and the correct state of the guardian's administration is ascertained? If there is no decree, no one is concluded nor benefited. The officer presides in a very barren dignity, if he can make no order, and take

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