
    William M. Rouse, Respondent, v. Daniel F. Payne and Samuel H. Hodgkins, Appellants, Impleaded with Carrie A. Whitney and Jesse Braman, Defendants.
    Third Department,
    June 25, 1907.
    Guardian —• action against sureties — accounting prerequisite.
    No action can be maintained against the sureties on the bond of a general guardian until there has been an accounting before the surrogate and a decree or order establishing the default and the extent of the deficiency. An order made on the petition of a substituted guardian which vacates the accounts of the former guardian as fraudulent and orders her to pay over a sum stated to her successor is nota judicial' settlement of her accounts which will support an action against her sureties.
    
      It seems, that the sureties of a general guardian are liable for sums belonging to the ward which she held as administratrix but failed to turn over to herself as guardian,.
    Appeal by the defendants, Daniel F. Payne and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 7th day of January, 1907, upon the decision, of the court rendered after a trial at the Essex Special Term.
    
      Francis A. Smith, for the appellants.
    
      J. S. Frost, for the respondent.
   Sewell, J.:

The question presented by this appeal is the liability of the defendants Payne, Hodgkins and Braman, as sureties upon the bond given by the defendant Whitney, as general guardian of the plaintiff.

The condition of the bond was that the said Whitney should faithfully discharge the duty of a guardian and render a true and just account of all money and property received by her.

The complaint, in substance,- alleges and the-proof shows that in January, 1895, the defendant Carrie A. Whitney was appointed administratrix of the estate of Thomas H."Bouse, deceased; that in April, 1900, a decreé was duly made and entered in the Surrogate’s Court of Essex county, judicially fettling the account of'-the administratrix, in-and' by which she was-directed to pay and-distribute the. sum of $4,584,4J to the general guardian of. the-plaintiff when appointed ; that on May 26, 1900, letters of guardianship were issued to her and -she continued to act as such guardian until April, 1902, when her "letters were revoked and' the defendant Samuel H. Hodgkins was appointed general guardian in her place. The pleadings admitted and the court found that $2,000 of the distributive share of the plaintiff were not in the hands of the administratrix at the time of making the decree-; that before her appointment as such guardian and while she was acting as sole administratrix she invested the sum of $2,000, a portion of;, the estate, in the bonds of the Empire Loan and Investment Company, and that said bonds “ constituted and were an illegal, improper and unauthorized investment of said'trust funds and were and-are wholly worthless.”

The complaint does not,allege an accounting before the surrogate, and the proof shows that the only accounting Was in a proceeding . instituted by one of the sureties to be released from further"responsibility, and .that as a result 'of the accounting a decree Was made .and entered November 30, 1900, wherein- it was found and deteiv mined that the guardian had in her hands at that time the distributive share due to the plaintiff. .

It also appears that after the plaintiff -had attained his majority a proceeding was instituted- by the petition of George M. Loukes, praying that the decree made upon the accounting of the guardian : in 1900 be:opened, vacated and set aside on the.ground of fraud; that an order was made requiring the defendant to show cause at a, time and place therein stated why the prayer of the petitioner should not be granted ; that it was duly served, and that on the 3d day of .March, 1906, said proceeding terminated in a decree which vacated and set aside the decree of 1900, except as to the provisions thereof discharging the surety, and that it also “ adjudged and decreed that the said Carrie .A. "Whitney pay to the said William Merriam Bouse the sum of $2,000 with interest thereon at six per cent per annum from the 1st day of October, 1901.”

The case was tried upon the theory that the plaintiff was entitled to maintain an action against the sureties for a misappropriation which had occurred before the letters of guardianship were issued, and that the appellants were liable for the failure of Whitney to comply with the order of the surrogate to pay the plaintiff the sum. of $2,000 and "interest.

It is urged, on the part of the appellants, that the sureties never intended or expected to assume the responsibility of answering for the conduct of the administrator, and that it would be extending the scope and purpose of section 2596" of the Code beyond its apparent object to hold that the bondsmen of a guardián must make good the loss sustained by the misconduct of an administrator several years before the letters of guardianship were issued toiler. A contrary view seeins to have been taken in the cases of Matter of Noll (10 App. Div. 356; affd., 154 N. Y. 765) and in Matter of Fardette v. U. S. F. & G. Co. (86 App. Div. 50) where it was held that “ It is no objection available to the sureties on his official bond as guardian for them to allege that prior to that time or to the time of his appointment as guardian he had misappropriated and converted to his own use the fund which came to him as administrator, and to which his wards were entitled. As he had received such fund and had not disposed of it in the administration of the estate, he in legal contemplation, had it in his custody at the time the decree was made. And for the-purpose of the effectiveness of the obligation assumed by the sureties in his official bond as guardian, his liability to account for it conclusively charges him with having the requisite fund.”

It is unnecessary to. consider whether these decisions go to the extent claimed by the respondent, or are distinguishable from the case at bar, as the result of the authorities is that no action can be maintained against sureties on the bond of a ’ general guardian until there has been an accounting before the surrogate and a decree, or order .made establishing' the .default and the extent of the deficiency. (Hood v. Hood, 85 N. Y. 561; Haight v. Brisbin, 100 id. 219; Perkins v. Stimmel, 114 id. 359; French v. Dauchy, 134 id. 543; Beider v. Steinhauer, 15 Abb. N. C. 428.)

As was said by Judge Potter in Perkins v. Stimmel: “ There have been intimations - that in some cases that there may be exceptions to the rule, yet I find no case where extraordinary circumstances have taken a cáse out of the general rule, nor what extraordinary circumstances would suffice to take a case out of the rule.”

The order or decree of the surrogate directing payment to' the plaintiff is not of the character of a decree rendered upon a judicial settlement of the account of a guardian. It does not contain a summary statement of the account settled or refer to such a summary. (Code Civ. Proc. § 2551.). It was not made on a final accounting and does not purport to be the result of a proceeding for an accounting. On the contrary, it recites that it is based upon a decree made- in a proceeding for the final, settlement of the account. of Samuel II. Hodgkins, as substituted guardian of. the plaintiff, and upon th¿ determination of the surrogate that the investment of the sum of $2,000 in the Empire Loan and Investment Company “ was illegal, improper and unauthorized and that the said bonds are and were wholly worthless.”

I am of the opinion that the decree of 1906 was not sufficient to determine the default, of the guardian and did not fix the liability of the sureties upon the bond of the guardian.

I think, 'therefore, that the judgment must be reversed and a new: trial granted, with costs to abide the event.

All concurred; Smith, P. J., and Kellogg,' J., in result.

Judgment- reversed on law and facts and new trial granted, wtith costs to appellants to abide event..  