Segelken v. Meyer

29 N.Y. Sup. Ct. 6

• Court: New York Supreme Court
• Decided: September 15, 1880
• Status: Published

Opinion

Barnard, P. J.:

The right of the infant by his guardian ad litem to bring this action, was decided by this court in Segelken v. Meyer, 21 Supreme Court (14 Hun), 593.

The facts establish a just claim. The plaintiff is an infant son of John Erederic Segelken. He died in 1864 without a will, leaving a widow and five children, all infants. The widow was appointed administratrix of her deceased husband, and general guardian of all of his children. The estate was settled by final decree in 1870, and. the plaintiff, as one of the children of deceased, was decreed entitled to $750 for his share of the father’s estate, including his share of 'such portion as was inherited from two of his sisters who died intestate, unmarried, and under age. The defendant was the lawyer of the widow as administratrix and as general guardian. In 1873 he had collected of the moneys of the estate $2,500. On January 3,1873, lie gave a written paper to Mrs. Segelken, acknowledging that there' was due her $1,500 as guardian and $1,000 as-next of kin of the two deceased children. In 1876 the widow died, leaving the plaintiff’s share of these sums wholly uncollected.. The decree, on final accounting directed the administratrix and guardian to pay the several shares of the children to the general guardian. In the written paper the defendant inserted a clause that-the $2,500 was “ payable according to a decree of the Surrogate of’ the County of New York.” The claim, now made, that the plaintiff' is not entitled to sue until he arrives at age, is untenable. The-guardian had no right to lend her attorney the trust funds without security, and to postpone its repayment until the arrival of the-infant of age. She probably knew nothing of the effect of the clause in reference to the decree. It would be against well settled rules of equity to permit an attorney to take an advantage of the-infant in such a manner. The claim that the plaintiff has no right-of action at all is equally untenable. The money was collected by the attorney for the administratrix and general guardian. He dealt with her as if she, as general guardian, held the shares derived, directly from the father, as well as that portion therein which the-surviving children had inherited from the deceased sisters. It was-a mere matter of form how she held it. It belonged to the children, and, as belonging to the children, the defendant acknowledged his indebtedness by the writing in question. The objection seems-to be a merely technical one to evade payment. As matter of fact, the plaintiff’s general guardian and his guardian ad litem are one and the same person. The point taken by the appellant that his-evidence was improperly excluded does not arise, as the evidence; was stricken out without objection.

The judgment should be affirmed, with costs.

T)vkman, J., concurred; Gilbert, J., not sitting.

Judgment affirmed, with costs.