Brown v. . Snell

57 N.Y. 286

• Court: New York Court of Appeals
• Decided: May 5, 1874
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] When jurisdiction was conferred upon the Court of Chancery, upon the application of the next friend or guardian of an infant seized of real estate, for the sale of the same, the act conferring the jurisdiction declared that the infant, from the time of the application, should be considered a ward of the court; and, for the purposes of the sale and the protection of the interests of the infant, it was made the duty of the court to appoint one or more suitable persons as its special guardians, in relation to the proceedings on such application, who should give to the infant a bond, in such penalty, with such sureties as the court should direct, "conditioned for the faithful performance of the trust reposed; for the paying over, investing and accounting for all moneys that should be received by such guardians, according to the order of any court having authority to give directions in the premises, and for the observance of the orders and directions of the court in relation to the trust; the orders and directions which it was made the duty of the court to make as the guardian of the infant, so far as related to the property, its proceeds and income, was for the application and disposition of the proceeds of the property, and for the investment of the surplus belonging to such infant, so as to secure the same for the benefit of such infant, and to direct a return of such investment and disposition to be made on oath, as soon as might be, and require accounts to be rendered periodically by any guardian or other person intrusted with the disposition or the income of such proceeds;" and if the bond of the guardian to the infant should be forfeited, to direct it to be prosecuted for the benefit of the injured party. (2 R.S., 194, 195, §§ 170, 171, 172, 173, 179.) After the jurisdiction thus conferred upon the Court of Chancery was, by the Constitution of 1846, transferred to the Supreme Court, jurisdiction was conferred upon the County Court of the respective counties in this State, "for the sale of real property of an infant situate within the county." (Code, as amended in 1851, § 30, sub. 6.) Under this jurisdiction, conferred upon County Courts, the plaintiff then being an infant and having real property situated in the county of Herkimer, the County Court of that county, in 1852, upon the petition of her guardian, made in conformity with the statute referred to, for the sale of her property situate in that county, appointed the defendant Balde as her special guardian for that purpose, who, with the defendants Snell and Petrie as his sureties, gave their bond, conditioned as the statute required, and upon its being approved he, as guardian, sold her real property, thus confided to his charge. After the plaintiff arrived at full age, and in July, 1866, the county judge of that county, upon the petition of the plaintiff, representing that Balde had money in his hands arising from the sale of her property, which he neglected and refused to account for, cited him to appear before the County Court and render an account for all the moneys which had come to his hands as such special guardian. Balde appeared, and on the 5th day of September, 1866, with the plaintiff, examined the accounts of the money received by him on account of the sale of her property, confided to him as her special guardian; when a balance was found due her from Balde, as such guardian, of $402.47, and Balde signed a stipulation to that effect, which he delivered to the county judge, and, thereupon, the County Court, as appears by the record, adjudged that sum to be due from Balde to the plaintiff, and ordered it to be paid at once, or Balde and his sureties be prosecuted. Balde neglected to pay, and the plaintiff brought this action to recover the sum thus settled upon as her due, and which the County Court adjudged to be due her; alleging in her complaint that an accounting was had, whereby it appeared that Balde was indebted to her for and on account of the moneys received by him, as such guardian, in the sum of $402.47; but because it appeared that this accounting was not had at any regular or adjourned term of the County Court, the plaintiff was nonsuited. When the jurisdiction of the Court of Chancery was increased by the authority conferred upon it to authorize the sale of infants' real estate, through agency of special guardians for that purpose, it was declared by statute that from the time of the application for the sale the infant should be considered a ward of the court so far as it related to such property, its proceeds and its income. (2 R.S., 195, § 179.) And, for the exercise of its jurisdiction in this, as well as for other purposes, notwithstanding it had stated terms, it was always open. And when, by the Constitution of 1846, that court was abolished and equity jurisdiction conferred upon the Supreme Court, that court acquired the power to exercise its equity jurisdiction at all times, although it had stated terms (Wilcox v. Wilcox, 14 N.Y., 575, 579), vesting power in the legislature to alter and regulate the jurisdiction and proceedings in law and equity, and now, in respect to the sale of an infant's real property, a County Court can exercise the same power over such property, situate within the county over which it has jurisdiction, that could have been exercised by the chancellor, or that can now be exercised by the Supreme Court (Code, § 31, sub. 6); and thus an infant is, in that respect, made the ward of the County Court, so far as it relates to the sale of such property, its proceeds and income. When the jurisdiction was conferred upon that court, along with it was given certain other jurisdiction theretofore exercised by the Court of Chancery, together with jurisdiction in matters of purely legal cognizance, with this provision, that "The County Court is always open for the transaction of any business for which no notice is required to be given to an opposing party." (Code, §§ 30, 31.) It is under this provision that the question now under consideration arises. It was because the time fixed by the citation for the appearance and accounting by Balde, as well as the time when he did appear and account, was not at one of the regularly appointed terms of the County Court, or at an adjourned term thereof, that the plaintiff was nonsuited at circuit. And hence the question arises whether Balde, the guardian, was, within the meaning of the act referred to, an opposing party. The object of the provision was to allow, or rather not to prevent the County Court from the exercise of the equity jurisdiction conferred upon it at times other than at its appointed terms, such as the Court of Chancery had theretofore done in regard to guardians and the like; and to prevent issues and litigated matters between parties having interests opposed to each other from being brought before the court, except at its stated terms. Had the citation and accounting occurred during the infancy of the plaintiff, and while she was by statute a ward of the court, so far as it related to the real estate sold and its proceeds and income, Balde, acting as her special guardian, was a subordinate of the court, whose only business so far as it related to that property, was to carry out, under the supervision of the court, its requirements in accordance with the statute and the equitable rights of the ward, with absolute loyalty to her interests, and could not of right hold the relation of an opposing party, and should not be presumed to claim to occupy that relation when cited to account; or any other attitude than a non-resisting and merely negligent party; and when, after arriving at an age when her relation of ward to the court ceased, she was, nevertheless, in her relation to Balde as her special guardian, under its protection, so far as it related to his accountability to her for the proceeds of the property sold, during all of which time Balde's obligation of loyalty to her interests in respect to the trust reposed in him, and his accountability for the proceeds of the property sold remained as before her relation of ward to the court ceased to exist; while this equitable as well as legal relation of absolute lute loyalty on the part of Balde, so far as it related to her interests in the property sold, existed, he should not on account of his negligence or refusal to account, be presumed as an actor against her interests or an opposing party in any other sense than one who, from other than a counter or hostile interest, had neglected or refused to account, or that when cited, any question would be raised placing him in the attitude of a litigant or an opposing party. It was his duty to account and the presumption is, that being cited to do so he would, as he did in this case comply. If, without requiring a citation, Balde had, as in duty bound, appeared and properly accounted, thus superseding the necessity, and hence the requirement of a citation. No doubt can be entertained that the court having, as is conceded, jurisdiction of the subject-matter, could have received the account and ordered it to be paid; or, in default, his bond be prosecuted; or, if he had been cited to account at a specified time other than at a stated term of the court, or show cause at a stated time during one of its regular terms, and he had appeared on the first day stated and rendered an account satisfactory to the plaintiff and the court, it clearly could have been received by the court and its payment decreed; and now that he did appear when cited, although the citation omitted the alternative, and without raising a question to be passed upon by the court, either as to whether or not he should be regarded as an opposing party, or a question being raised as to the account, or an item in it, rendered an account satisfactory to the plaintiff. The court had jurisdiction, as well as authority to direct its payment, as it did in the form of a decree, and in default the bond be prosecuted.

There is yet another ground upon which the judgment appealed from should be affirmed. The defendant Balde has accounted with the plaintiff for the proceeds of the sale of her property made by him during her minority as her guardian, and as between themselves settled upon $402.47, as the balance due her. The fact that it was done in pursuance of a citation issued to Balde to appear before the County Court, to render an account for all moneys which had come to his hands as her guardian, made it as between themselves, none the less a settlement; there was no controversy between them, no question or item of the account was in any way settled by or passed upon by the court, or any concession made by Balde under duress. The question then arises whether, if the accounts of the guardianship have been settled by the parties, this action can be maintained; and for all the purposes of the question it may be conceded that the act of issuing the citation, and every act of the County Court in adjudging that amount to be due the plaintiff and directing the bond to be prosecuted was void. It cannot effect the question of the adjustment, made by the parties themselves, and its effect upon the plaintiff's right to recover.

It is in substance insisted that because the defendants, Snell and Petrie, the sureties of Balde were not parties to the settlement, and no accounting was had by Balde in a court of competent jurisdiction, sanctioned and approved by such court, they are not liable to an action upon their bond. I have stated fully the several provisions of the statute conferring jurisdiction to order the sale of an infant's real property and establishing the relation of the infant to the court that it may be seen that the only object of the statute was to place the proceeds and income derived from the sale under the dominion of the Court of Chancery, between whom and the infant the statute established the relation of guardian and ward, that the court might, through the agency of a special guardian, to be appointed by the court for that purpose, protect the interests of the infant while incapacitated by want of age; and, in order to accomplish that object, the special guardian was required to give a bond to the infant, with sureties, for paying over, investing and accounting for all moneys that should be received by such guardian, according to the order of any court having authority to give direction in the premises; and the court under whose supervision the special guardian was to act, was invested with authority to order the application and disposition of the proceeds of such property, and for the investment of the surplus belonging to such infant, so as to secure the same for its benefit; and in the event of the failure by the special guardian to comply with any order of the court for the application or disposition of the proceeds of the property the bond would, of course, become forfeited, and then it became the duty of the court to direct it to be prosecuted. The whole object intended to be accomplished by these several provisions, so far as the plaintiff is concerned, was to place the proceeds and income of her property sold under the guardianship of the court that it might, except for the necessary expenses of the proceedings and of her necessities, as adjudged by the court, be delivered over when she became of full age. Then, when her relation of ward as well to Balde, her special guardian, as to the court her general guardian, so far as it related to the proceeds and income of her property sold ceased, and she became entitled to all the moneys received for it by her special guardian, and to the bond given by him and his sureties for the performance of the trust reposed in him. It cannot be doubted that, upon an accounting as between Balde and her, Balde had the right to pay and she to receive the amount found due her and discharge the bond. The court, as the guardian of the plaintiff, had the right to direct when and what sum should be paid over by her special guardian to or for her during her minority, and how and in what way the surplus should be invested, and when and how often the guardian should account. All this could have been done during the infancy of the plaintiff, but after she became of full age no court had the authority to parcel out the proceeds of the sale and direct it to be paid in such parcels as, in its judgment, her necessities might require, or direct the investment of the surplus. That was an authority that could be exercised during her incapacity to take charge of her own estate, and not afterward; and if the condition of the bond had reference as well to an accounting to be directed after she became of full age as to one directed during her incapacity, by reason of her minority, to bind herself by her acceptance of the account rendered and liquidating the balance, it very clearly did not contemplate the direction of such an accounting, unless he who had been the special guardian had rendered the direction necessary by his neglect or refusal to account for the moneys received by him. The proceedings for an accounting in such cases are always founded upon the neglect or refusal to account. I never heard of an instance, and doubt whether one can be cited, in which a petition or bill for an accounting stated that he who had been the guardian of the petitioner or of the complainant, as the case may be, had rendered a just and satisfactory account of all the moneys received by him (showing a given balance in his hands) and praying that he be cited or ordered to account. In Stillwell v.Mills (19 J.R., 304) a settlement by the parties seems to have been regarded as an equivalent to an accounting before a court. In that case the court said: "It does not appear that the accounts of the guardianship have been settled by the parties, or that any proceedings have been had before the chancellor, requiring an account of the guardian. Until the accounts are thus settled, an action cannot be sustained on the bond," and then stated (citing 1 J. Ch., 107, as authority for the statement), that a guardian must be called to account before a surety is liable. The authority cited asserts no such proposition, the question was not in the case; besides, in that case, the plaintiff was an infant, and the question was, whether a surety was holden where the bond was given in the name of the people, instead of the infant, and it was held, that the bond was, in that respect, amendable. (Wiser v. Blachley, 1 J. Ch., 607.) In Salisbury v. Van Hoesen (3 Hill, 77), an action was brought upon a bond given by a guardian and his sureties, for performance of the trust reposed in the guardian, and for the observance of such orders and directions as the chancellor might, from time to time, make in the premises, in relation to such trust. The act of 1815, under which that bond was given, provided, that if it was forfeited, it might be prosecuted in any court having cognizance of the same, by the direction of the chancellor; and, because the declaration did not aver that the accounts of the guardian had been settled by the parties, or that any proceedings had been had before the chancellor, it was held void on demurrer. Justice BRONSON, delivering the opinion of the court, said the case could not be distinguished fromStillwell v. Mills (19 J.R., 304), where it was held that an action could not be maintained upon the bond of a guardian, until after the accounts had been settled by the parties, or there had been proceedings against the guardian in the Court of Chancery; and, after thus disposing of the case, and all there was in it, he referred to the provision, that the bond, if forfeited, might be prosecuted in any court having cognizance of the same, by the direction of the chancellor, and then said, "I think the declaration should show that there have been proceedings against the guardian in chancery." The case, as appears by the opinion of the learned judge, was not argued, but submitted without a brief on either side. The expression was not necessary to the decision of the case, and was not made, as was his habit, when he had arrived at a clear conclusion as to the law of any case before him. The bond sued upon was for the observance of such orders and directions as the chancellor might, from time to time, make in the premises, in relation to the trust, having undoubted reference to directions made from time to time, during the existence of the guardianship, for the benefit of the ward and its estate, when a failure to observe any order made would forfeit the bond, and then the chancellor could give directions for its prosecution. The provision could not have been intended to restrain a party of full age from exercising his discretion as to the prosecution of his defaulting trustee, merely because the trust had arisen out of their prior relation of guardian and ward. It is enough, for all the purposes of this case, that the plaintiff and her late guardian accounted with each other, and settled upon a balance due her; if there was anything wrong in it, the sureties were not bound by it, and could have defended on that ground.

The judgment of the Supreme Court, setting aside the nonsuit, should be affirmed, and judgment ordered for plaintiff.