Wiser v. Blachly

1 Johns. Ch. 607

Opinion

The Chancellor.

There must be a reference to the master, to take an account of the property which it is admitted, or proved, has come to the possession of the guardian; and, under the allegations contained in the case, it will be proper for the master to inquire, also, into the fitness and competency of the guardian to continue in his trust. Perhaps it will be premature to take an account of the assets in the hands of the executors of the surety, until the default ofthe principal, and his inability to pay, are first ascertained. But as to the main point in the case, whether the surety is to be holden, though the bond was taken in the name of the people instead of the name of the infant,T have no difficulty in saying, that it is within the ordinary jurisdiction of this court to correct such a mistake, by holding the party according to his original intention, and to consider the bond as taken to the infant. Where the intention is manifest, this court will always relieve against mistakes in agreements. (2 Atk. 203. 1 Ves. 317.) The case cited from Prec. ire Chancery shows, that the court will do it in the case of a surety. Here it is admitted in the answer, and the bond itself is conclusive proof that Vail intended to bind himself as security for Blachly, the guardian; and, whether the bond was taken in the name of the infant, or in the name of the people, in trust for the infant, it is but matter of form and not of substance ; it would be intolerable that such a mistake should prejudice or destroy the rights of the infant.

I shall, accordingly, decree, that the bond, executed by the surety, is to be valid as a security to the like extent as if it had been taken by the surrogate according to-the act; that the guardian shall account with the plaintiff for the moneys, -estate, and effects of the plaintiff, which have come to his hands as guardian; that it be referred to a master to take the account, and also to inquire and ascertain whether B., the guardian, be able to pay what maybe found due, and whether he has taken due care of the plaintiff and her estate ; and whether he be a suitable person to continue guardian ; and that the question of costs, and all other questions,, be, in the mean time, reserved.

Decree accordingly.