
    In the Matter of the petition of William C. Camp for an accounting by Calvin B. Camp, as his guardian.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    Guabdians — Accounting—Estoppel.
    Calvin B. Camp was in 1868 appointed general guardian of his children for the purpose of receiving an award ma8e to them for lands of their deceased mother taken "by the city, and received such award and receipted, therefor as guardian, hut no inventory was filed. In a proceeding to compel him to account, Held, that he could not he heard to question the legal title of his wife to such lands, nor to claim a life interest in the award, as the entire amount was awarded to the children and belonged to them; that if he claimed an interest therein adverse to his interest as guardian, he should have asserted it at once on receipt of the fund and had it adjusted and set apart.
    Appeals by respondent from decree of surrogate in favor of petitioner, and by petitioner in respect to the amount of such decree.
    
      Joseph JET. Ghoate and Frederic B. Jennings, for petitioner; W. CL Beecher, for resp’t.
   Dykman, J.

This was a proceeding to procure an accounting by the guardian of the petitioner and other children of the respondent, Calvin B. Camp.

The facts set up by the petition were not denied in any material respect, and the following facts can be gathered therefrom: The mother of the petitioner and the wife of Calvin B. Camp died intestate on the 25tli day of October, 1866, seized and possessed of certain real estate in the city of Brooklyn, leaving her surviving Calvin B. Camp, her husband, James B. Camp, William C. Camp, Julia Adelaide Camp and Mary Ella Camp, her only children and lieirs-at-law.

James B. Camp afterwards died intestate, unmarried, and without children. Prior to the death of the mother of the petitioners, proceedings had been taken by the city of Brooklyn to condemn one of the lots owned by her, and such proceedings were pending-at the time of her death, and subsequently resulted in an award to the petitioner and his brother and sisters of $26,000 for their interest in the real estate so taken. At the time of such award, the petitioner and his brother and sisters were minors, and Calvin B. Camp, in.order to enable him to obtain the amount of said award, was appointed general guardian of the petitioner and his brother and sisters by separate proceedings in the surrogate’s court on the 17th day of February, 1868. Under and by virtue-of such appointment as guardian, Calvin B. Camp received from the comptroller of the city of New York the sum of $26,000 on the 18th day of February, 1868, being the amount of such award, one-quarter of which belonged to the petitioner.

The comptroller’s warrant was drawn to Mr. Camp as general guardian, and he receipted for the same in that capacity. Prior to the commencement of these proceedings no inventory had been filed, and no portion of the sum received had been paid over to the petitioner by his guardian, and the petitioner had learned the facts only within a short time prior to the institution of these proceedings.

Subsequently, and under the decision of the general term of the supreme court, the guardian filed his account in this proceeding as general guardian of the petitioner, in which the guardian acknowledged the receipt of the $26,000 in question, and made no attempt to set up specific items claimed to have been paid upon account of the petitioner or his brothers and sisters out of the said sum received by him as their guardian, but he did claim an offset against his liability as such guardian,of certain sums therein stated to have been paid by him toward their support.

The petitioner filed objections to such account, and the matter was referred by the surrogate to a referee, to examine the account and determine the questions arising upon the settlement, and report thereon to the surrogate. Upon the hearing before the referee, it was admitted that the sum of $26,000 had been received by Mr. Camp as the general guardian of his four children, and that he had never accounted for the same, and the questions before the referee related to the validity of the several items of expenses charged against the said trust fund in his account. The facts as we have stated them, were substantially admitted by the guardian before the referee, and were not materially changed or modified by the testimony there taken.

The referee, while holding that the guardian became liable to account for the fund so received by him as such guardian, further held and decided that he would have been entitled to a life interest in the fund when he received it, and was entitled to credit for the value of such life interest at the time, and was liable only for the value of the remainder at that time, with interest thereon, and he directed judgment for the petitioners accordingly. The report was confirmed by the surrogate, and an appeal was taken from the decree by the guardian to the general term.

The petitioner also appealed from that portion of the decree which- limited the recovery of the petitioners and allowed the guardian for his life interest in the fund. The points relied upon by the guardian upon this appeal are:

First. The statute of limitations.

Second. The fact that the property which was taken by the city ■did not actually belong to his wife, but had been conveyed to her as a cover, and was held by her as trustee for himself, and that therefore the whole of the award made by the commissioners belonged to him, and his children had no interest therein.

Third. That the gurdian as tenant by the curtesy, had a life ■estate in the $26,000 paid, and could not become liable therefor until after his death.

The first point respecting the statute of limitations has already been presented to this court, and decided against the guardian in these same proceedings. Matter of Camp, 50 Hun, 388; 21 N. Y. State Rep., 308.

In respect to the second point, it is sufficient to say that the guardian cannot now be heard to question the legal title of his wife, even assuming thh facts claimed by him to be true, of which there is no proof, the testimony offered in proof of that allegation having been properly rejected by the referee, and even if the fact was as the guardian now claims, no trust resulted to him from such a conveyance.

Upon this appeal, therefore, and the appeal of the petitioner, we have to consider the claim of the guardian to a life estate in the fund received by him from the city of Brooklyn. Upon all the facts in this case, the only legitimate conclusion to be reached is, that the entire sum in question was awarded to the children of the guardian as compensation for their damages in the condemnation proceedings, and belonged absolutely to them. The award was made to the petitioner and his brothers and sisters; the comp-. I trailer’s warrant was drawn to Mr. Camp, the general guardian,' and he received the same, and gave a written acknowledgement therefor as such guardian.

He was appointed the general guardian for the purpose of receiving the money. He did receive the same the next day in pursuance of such appointment, and his present claim is entirely inconsistent with his conduct-from the time of his appointment as such guardian down to the time of the rendition of his account in pursuance of the judgment of this court. If this guardian had, or claimed to have, any personal interest in the fund so received, by him, adverse to his interest as the guardian and trustee of his children, it became his duty at once, upon the receipt of the fund, to assert such interest and have it adjusted and set apart to them, but he never in any way asserted any claim to a personal interest-in the fund until after it had been converted to his own use and lost He occupied a place of trust and confidence, received the fund in the capacity of a trustee, and he should not now at this late day be permitted to set up an adverse claim to any portion of the money in contravention of his trust. The referee should have found in favor of the petitioner in each of the proceedings for the full amount of $6,500, with interest, and the decree should be modified by increasing the amount to $25,000, instead of the amount so reported due by the referee, and, as so modified, the decree should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  