
    William M. Rouse, Plaintiff, v. Carrie A. Whitney, Daniel F. Payne, Samuel H. Hodgkins and Jesse Braham, Defendants.
    (Supreme Court, Essex Special Term,
    February, 1907.)
    Guardian and ward: Accounting and settlement — In general—Settlement between guardian and ward — When not to be inferred; Fights and liabilities on guardianship bonds and actions thereon; Defenses; Evidence. Bonds: Validity — Fraud — A defense to action on guardian’s-bond; Breach — Evidence. In an action against a guardian and her sureties upon her bond to recover money allege! to have been lost through improper investments it is no defense to the sureties that they were induced t to sign the bond by the false and fraudulent representation of the guardian as to the investment of the ward’s money, made at or prior to the execution of the bond. The return unsatisfied of an execution, issued upon the surrogate’s decree entered upon the judicial settlement of the guardian s account, justifies an action against the guardian’s sureties and is sufficient proof that the plaintiff, the late ward, has exhausted his remedy against the guardian. A deed of conveyance from the guardian to her late ward is not presumptive evidence of a settlement of all matters between them and may not, by inference, be extended to matters not specifically mentioned or referred to therein.
    Action under section 2607 of the Oode of Civil Procedure by William M. Rouse, late infant, against Carrie A. Whitney, his former guardian, and the sureties upon her bond for the recovery of moneys alleged to have been lost through improper investments. The answer of the defendants Payne and Hodgkins alleges at the time they executed the bond, said Whitney “represented and stated falsely and fraudulently ” that the bonds in which the investment had been made were good and valid, and that they were thereby induced to sign the bond.
    Frost, Daring & Warner, for plaintiff.
    Smith & Wickes, for defendants Payne and Hodgkins,
    
      Keeshan & Sleicher, for defendant Whitney.
   Spencer, J.

The only debatable question in this case, as it seems to me, is the one passed upon by the court during the progress of the trial, and that is whether the defendants Payne and Hodgkins, as sureties upon the bond of the defendant Whitney, as guardian, may allege and establish as against the plaintiff, the infant, any fraud or misrepresentation on the part of the defendant Whitney at or prior to the time of the execution of the undertaking so as to invalidate such undertaking. I was then of the impression that they could not, and am still of the same view.

I think the surrogate’s decree, under date of March 3, 1906, was to all intents and purposes a final settlement of the guardian’s account. The defendants Payne and Hodgkins, as sureties upon the guardian’s bond, were parties to that proceeding and are bound by the decree entered therein until the same has been modified or reversed by competent authority.

I am also of the opinion that the return unsatisfied of an execution issued upon a surrogate’s decree in such a proceeding is all that is necessary to justify an action against the guardian’s sureties and sufficient proof that the plaintiff has exhausted his remedies against the principal in the undertaking.

The deed of conveyance from the defendant Whitney to the plaintiff, dated July 24, 1905, is not to my mind presumptive evidence of a settlement and adjustment of all matters between them. It may not by inference be extended to matters other than those therein specifically mentioned or referred to. The subject-matters of that conveyance being set forth therein, it will be presumed that it has application to only such matters as are specified.

It follows that judgment must be entered for the plaintiff ior the relief demanded in the complaint against defendants, with costs.

Let findings of fact,and conclusions of law be prepared and submitted in accordance herewith.

Judgment accordingly.  