Stilwell v. Mills

19 Johns. 304

• Court: New York Supreme Court
• Decided: January 15, 1822
• Status: Published

Opinion

Per Curiam.

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 guardians. Until the accounts are' thus settled, an action cannot be sustained on the bond. A guardianship is a trust, and it peculiarly and exclusively belongs to the Chancellor. (1 Madd. Ch. 269., and the cases there cited.) A guardian must first be called to account, before the surety is liable. 1 Johns. Ch. Rep. 607.

The Chancellor is authorized to make allowances to the guardian, and that Court has every facility for finally adjusting the trust; whereas, in a court of common law, it would be extremely unfit to submit the accounts to the decision of a jury or referees; The true effect of the condition of the bond, is to render an account in the Court of Chancery and as this has not been required, the condition of the bond is not violated.

Judgment for the defendant.