In re Van Derzee

26 N.Y.S. 121, 73 Hun 532, 80 N.Y. Sup. Ct. 532, 56 N.Y. St. Rep. 157

• Court: New York Supreme Court
• Decided: December 1, 1893
• Status: Published

Opinion

DYKMAN, J.

This is an appeal from a decree of the surrogate •of the county of Richmond, dismissing the application of the appellant to compel the respondents to file an account of the proceedings of their decedent as general guardian of the appellant. The appellant, Van Derzee, presented a petition to the surrogate of Richmond county, in which he stated, among other things, that he was 34 years of age; that on the 13th day of January, 1864, letters of guardianship were granted by the surrogate of Richmond county to John H. Van Cleef, in said county, appointing him general guardian of the person and estate of the petitioner; that John H. Van Cleef died on the 22d day of January, 1892, at Port Richmond, in ■said county, without having made any settlement of his accounts as •such general guardian of the petitioner; that Van Cleef left a last will and testament, which was admitted to probate by the surrogate •of Richmond county, and on the 18th day of March, 1892, letters testamentary were granted thereon to Melville E. Wygant, John ‘Croak, and Louis Kloss. Then the petitioner prays that a citation may be issued to such executors requiring them to show cause why they should not, as executors of the last will and testament of Van Cleef, render a judicial settlement and account of his proceedings-as general guardian of the petitioner. The executors answered the petition, denying the allegation in the petition that the guardian, Van Cleef, died without having rendered and settled his accounts as-such general guardian, and alleging, on the contrary, two several accountings by him,—one on the 15th day of January, 1869, and the last on the 14th day of June, 1875,—in which he fully accounted for-all the matters concerning his guardianship. They then stated that the petitioner ought not to maintain this proceeding, because more-than 10 years have elapsed after the petitioner became of full age, and before the death of Van Cleef, and because more than 29 years-have elapsed since the original appointment of the guardian. When, the matter came before the surrogate he made .a decree denying the application of the petitioner, and it is to be gathered from the-language of the decree that his decision was based upon the statute-of limitations, or, in other words, that he decided that the right to the relief was barred by the 10-years statute, inasmuch as more-than that time had elapsed since the petitioner became 21 years of age. From the date stated in the petition it is to be gathered that Van Derzee became of full age on the 15th day of June, 1879, when-he could have maintained the action against Van Cleef, as guardian, for the settlement of his accounts, or for the money in his hands, if" any remained at that time. That being so, the relations existing between the petitioner and his guardian from that time were that of debtor and creditor, and the six years would apply, because-such an action would be based upon an implied contract to pay over money belonging to the plaintiff. Our conclusion is that the-surrogate properly applied the statute of limitations to the proceeding, and his decree should be affirmed, with costs. All concur;