In re the Accounting in the Estate of Colon

1 Tuck. Surr. 244

• Court: New York Surrogate's Court
• Decided: July 1, 1870
• Status: Published

Opinion

The Surrogate.

.The late .general guardian of the Colon infant, sited-his late . ward (now arrived at age) in the Supreme Court for advances claimed to have been ■madé beyond receipts.-' At the Bichmond-County Circuit, Mr.. Justice Gilbert dismissed the complaint, on the ground, as appears from his written opinion, that £< the plaintiff, having been general guardian of the infant during the time of the accruing of the alleged indebtedness, could not maintain an action at law against hls-late wardand the learned Judge said that the. only remedy would'be on the settlement of the accounts of the general guardian before the Surrogate who had appointed him. ■ The guardian now applies to me for an order against the executors of George Colon to render. an account of their proceedings, the late' .ward being a legatee under the will of George Colon.

As the petitioner applies on his own behalf, and not as general guardian, I must-refuse his application.0 He is not a person having a demand against this estate. (3 R. S., 5th ed., p. 178, § 57.) He claims against his ward. He must pursue the course pointed oút by the learned Circuit Judge, and go before the Surrogate of Biehinond .■county, by whom he was appointed general guardian. There he must settle his accounts . with his late ward-, and obtain a decree in his favor, if he can show’that he has expended beyond his receipts. The enforcement of that decree against the legacy, of his late ward will bé a matter for consideration when he has obtained it.