
    (4 Misc. Rep. 40.)
    In re BARKER. In re PLACE.
    (Surrogate’s Court, New York County.
    June, 1893.)
    Guardian and Ward—Account ins--Loches.
    A ward, having come of age, had a talk with her mother, who had been her guardian, about accounts between them, when the mother said that she had spent the entire fund on living. It appeared that the mother’s accounts were always open to her daughter’s inspection, and that the latter had some knowledge of them, even as to very trifling charges against herself. Held, that she could not call her mother to account 10 years after her majority.
    Accounting by Annie M. Place, as guardian of Cora N. Barker. On exceptions to referee’s report.
    Report overruled, and proceedings dismissed.
    Charles F. Wells, for guardian.
    Large & Stallknecht, for ward.
   RANSOM, S.

TMs is an accounting by the general guardian of the infant above named, originally compulsory, but converted into a voluntary proceeding. Exceptions are filed by -accountant and contestant. On the 8th of July, 1869, Mrs. Place, the mother of the -infant, was appointed general guardian. The ward filed a petition for a compulsory accounting March 9, 1891, 22 years after the appointment, and within 6 days of 10 years after the ward had attained her majority. Prior to the taking of any testimony in tMs proceeding as to the accountability of said guardian for moneys received and paid out by her as such, counsel for the guardian interposed as a defense the statute of limitations, both to the said petition of the said contestant, and to the objections to said account of said guardian, as filed. The decision of the referee, overruling the objection of the statute of limitations. is based upon In re Camp, 126 N. Y. 389, 27 N. E. Rep. 799, which-appears to hold that although a party may cease to be guardian^ upon the ward coming of age, yet so long as the property remains in his possession as guardian, and unaccounted for, he remains liable to account. The leading case in this state upon the rule that, as between the trustee and the cestui que trust, no statute of limitations, nor any bar by analogy to the statute, can be relied/ ' on, is Kane v. Bloodgood, 7 Johns. Ch. 89. The case of Lockey v. Lockey, Prec. Ch. 518, referred to on page 113, 7 Johns. Ch., clearly recognizes the rule that, where there is a legal and equitable remedy in respect to the same subject-matter, the latter is under the control of the same statute bar with the former. In Buswell on Limitations, (page 193,) it is stated that the ancient action of account was the remedy provided in cases where there was a privity between the parties as against a bailiff or receiver, or a privity in law as against a guardian in socage. Further on it is-also stated that the period of limitation to an account is, either by construction or statute provision, made the same in equity as at law. In an early case the lord chancellor was of opinion that “where one receives the profits of an -infant’s estate, and, six years after his coming of age, he brings a bill for an account, the statute of limitations was a bar to such a.suit, as it would be to an action of account at law,” and cited Lockey v. Lockey, Free. Ch. 518. The administration of trusts falling within the peculiar. and exclusive jurisdiction of courts of equity, the doctrine is established that as between trustee and cestui que trust, so long as-that relation subsists, the trust cannot be affected by the statute of limitations; but where the relation is no longer admitted to-exist, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties,- or other circumstances, give rise to presumptions unfavorable to its continuance, courts of equity wül refuse the relief, upon the ground of lapse of time, and inability to do complete justice between the-parties. The equitable principle upon which the general doctrine is founded is thus stated by Lord Bedes dale': •

“If a trustee is in possession, and does,not execute his trust, the possession of the trustee is the possession of the cestui que trust; and, if the only-circumstance is that he does not perform his trust, his possession operates-nothing as a bar, because his possession is according to his title.” Hovenden v. Annesley, 2 Schoales & L. 633; Busw. Lim. & Adv. Poss. 457.

Thetre is authority for the statement that upon the ward’s arriving at his majority, or at least upon his settlement with the guardian, the limitation begins to run, as between guardian and ward. Mason v. Johnson, 13 S. C. 20; Jones v. Jones, 91 Ind. 378. After a ward becomes of age, the fiduciary relation of guardian and ward ceases, and the parties are in -relation of debtor and creditor, and the claim of the ward is within the statute. Busw. Lim. & Adv. Poss. 474, and cases cited. The distinction runs through all the cases that the mere retention of the funds furnishes-no grounds to assume the title thereto in the trustee, inasmuch. as such, retention is consistent with the character he sustains, and therefore does not excite any suspicion of an intention to appropriate the funds. Although the statute of limitations does not apply directly to technical trusts, yet it has always been held that ’if a trustee should deny the right of the cestui que trust, and assume absolute ownership of the trust property, he thereby abandons his fiduciary character, and the cestui que trust must commence legal proceedings against him within the statutory period of limitations. It should appear that the cestui que trust had knowledge of the trustee’s denial, repudiation, or adverse claim, and that the trustee has not been guilty of fraud. The doctrine that a positive and technical trust is not barred by the lapse of time is subject to two qualifications, namely, that no circumstances exist to raise the presumption from lapse of time of an extinguishment of the trust, and that no open denial or repudiation of the trust is brought home to the knowledge of the parties in interest, which requires them to act as upon as asserted-adverse title. Busw. Lim. & Adv. Poss. 471. Lapse of time, without any claim or admission of an existing right, coupled with circumstances tending to show that a trust had been executed, may raise a presumption of its execution, and, in case of a guardian, may .authorize the court to require a less specific statement of items, and raise a presumption of payment to, and for the ward to the amount of the account. Gregg v. Gregg, 15 N. H. 190; Whedbee v. Whedbee, 5 Jones, Eq. 392. In Re Neilley, 95 N. Y. 382, it was held that it is only where there is an actual, continuing, and subsisting trust that a trustee is precluded from setting up the statute of limitations. . This was held upon the authority of Kane v. Bloodgood, 7 Johns. Ch. 89. The opinion of the court in this case, at page 90, refers to the equitable rule under which courts of equity reject stale claims, independent of the statute of limitations, and cites one case where a bill was filed against an executor for an account, and there being no statutory protection, and the presumption of a final settlement being rebutted, the court refused to open the account after a great lapse of time, when it was probable that most of the parties were dead, and the vouchers and the receipts were lost. In the case at bar, 10 years had elapsed after a practical, informal settlement out of court, and many of the items for which reimbursement was claimed were rejected because of the absence of vouchers or substituted proof required by section 2734, Code Civil Proc. In Re Hawley, 104 N. Y. 261, 10 N. E. Rep. 352, it was held that, to constitute a testamentary trustee, it is necessary that some express trust be created by the will. Merely calling an executor or guardian a trustee does not make him such. Every executor and every guardian is, in a general sense, a trustee, for he deals with the property of others, confided to his care. But he is-not a trustee in the sense in which that term is used in courts, of equity and in the statutes. In re Camp, 126 N. Y. 377, 27 N. E. Rep. 799, was a proceeding against the father and guardian of petitioner to compel bim to account. The mother of the ward died seised of certain real estate, leaving her husband and four children, heirs at law. Prior to her death the city had commenced proceedings to acquire title to a portion of the real estate, which after her death resulted in an award of $26,-000 to the petitioner, and his brother and sisters. This sum was paid to the father, as such guardian. The accounting proceeding was commenced in May, 1888. The moneys were received in February, 1868. The fact of the receipt of the moneys first became known to the petitioner within a year of the institution of the proceedings. The respondent answered that the guardianship of the petitioner ceased in 1872, when he became of age, and that the present proceedings were on that account barred by the statute of limitations. The surrogate overruled the objection, and directed the guardian to file an account. After an unsuccessful appeal to the general term, the guardian filed his account, which was of a most general character, and from which, and from his statements accompanying the same, it appeared that he had made certain payments which he claimed to charge the petitioner with, and which, if allowed, would show that he had more than paid out for the benefit of the ward the moneys that he had received. Objections were filed to the account, and it was sent to a referee. Before the referee the guardian insisted that" the fund was not such a fund as he should account for as general guardian, nor could any portion of it be enforced to be distributed among the heirs at that time, or at any time prior to Ms decease. This objection was also overruled, and the guardian excepted. The referee found the guardian liable to account for the amount he had received, but that he was to be credited with the value of his life interest therein. He deducted the proportionate share of such life interest from the share of the petitioner, and gave judgment for the balance, with interest. The general term modi: fled tMs so as to charge the guardian with the full sum received by him, with interest from the time he received it. At the foot, of page 388, 126 N. Y., and page 803, 27 N. E. Rep., of the opinion,, the court refer to their previous decision in Re Hawley, 104 N. Y. 261, 10 N. E. Rep. 352, and distinguish it. But at page 389, 126 N. Y., and page 803, 27 N. E. Rep., they state that they do not regard the matter as very important upon this question. While-1 am not by any means satisfied that the decision of the court of appeals in Re Camp, 126 N. Y. 377, 27 N. E. Rep. 799, is decisive upon the point that the relation existing between a guardian and a ward after majority is such a technical trust as to subject it to-the rule that the statute of limitations does not apply, the matter may be decided upon another point, as to wMch the law is entirely clear. At page 12 of the minutes, the mother testified:

“Ever since Cora knew anything, she saw my account book. It always lay on the table or on my desk, and it was never locked. If she did not inspect those accounts, it was because she did not want to. I supposed she did. Question. Bid she look over the accounts? Answer. In a general way, certainly she did, for she could not help it. I have read them over to her, and told her about it.”

These transactions occurred at or before she attained her majority.

“Q. Do you say the same of your account as guardian,—the history of your administration up to the time when she became of age? A. Yes, sir.”

At page 78 the ward testified:

“My mother always treated me very kindly, but I thought it strange that I never had anything, or any money. After I was of age, I asked my mother about it. I never asked before. Q. What did she tell you when you became of age? Did she show you the account? A. No; she only said she spent all upon living.”

It appears hy this testimony that subsequent to the attainment, of her majority, the guardian and ward had a conversation concerning the accounts of her mother, and the mother stated that she h'ad expended the entire fund. All the other circumstances surrounding the case negative the idea that the trustee was guilty of any fraud or concealment which would prevent the repudiation from having its legitimate effect. The accounts were ' always open to her inspection, and, notwithstanding her statement that she did not examine the same, it is apparent from other portions of the testimony that she knew their contents, and was aware that in some instances her mother had charged against her sums as low as 5 or 10 cents. She could not have known this without, to some extent, having examined the account. I am therefore of opinion that the referee’s report must be overruled, and the proceedings dismissed, upon the ground that the statute of limitations runs against the claim.  