
    Clara A. Hann Martin, Plaintiff, v. Ann Hann, as Executrix, of the Will of Michael H. Hann, Deceased, Alonzo Porter and John M. Goodwin, Defendants.
    
      Guorrdian and ward — the sureties on the guardian’s bond concluded by a decree against his executrix—proof that the guorrdian; who had brought up the ward as his daughter, was not allowed for music lessons 'and a physician’s bill paid by him- — commissions.
    
    Tho sureties upon the bond of a general guardian, whose executrix on an accounting in the proper Surrogate’s Court has been adjudged to pay a certain sum to-the war'd, are concluded by such decree in the absence of fraud; and proof that, the general guardian, who was the grandfather, of the ward, in whose family she lived, and by whom she was brought up and cared for as his daughter,, gave her an organ and a piano, and paid her tuition for instruction in music, and a physician’s bill, for which no allowance was made in the accounting in the Surrogate’s Court, is insufficient to authorize a finding that the accounting: was collusive or fraudulent.
    A guardian who has been guilty of a devastavit is not entitled to commissions on the funds of his ward in his hands.
    
      Motion .by the defendants, Alonzo Porter and John M. Goodwin, for a new trial, made upon a case containing exceptions, ordered to be heard at the Appellate Division . in the first instance upon the verdict of a jury in favor of the plaintiff for $1,125, rendered by direction of the court after a trial at the Allegany Trial Term.
    Both parties moved that the court direct a verdict, and a verdict was directed for the plaintiff for $1,125; to which direction the defendants excepted, and their exceptions were ordered heard by the Appellate Division in the first instance.
    Clara A. Hann was born December 21, 1875, became fourteen years of age December 21, 1889, and twenty-one years of age December 21, 1896, and was the granddaughter of Michael H. Hann, who, after the death of her father, was. appointed her general guardian in August, 1891, by the surrogate of the county of Allegany. Hpon his appointment the defendants Alonzo Porter and John M. Goodwin entered into the usual bond of a , general guardian in the sum of $2,000. In December, 1889, when the • infant became fourteen years of age, Michael H. Hann was again appointed the general guardian of the infant, and the defendants executed a second bond in the sum of $2,000, conditioned for the faithful discharge by the guardian of his duties. In 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1892, 1893 and 1894 the guardian filed accounts in the office of the surrogate showing that he had in his hands $1,000 belonging to the ward. The evidence shows that this money was the avails of an insurance upon the life of her father. December 2, 1895, Michael H. Hann* died, leaving a last will and testament, which was duly admitted to probate and letters . testamentary were issued thereon February 26, 1896, to the defendant Ann Hann, his widow. At the date of the death of Michael IT. Hann Clara A. Hann ivas a minor, since which date she has married and her name now is Clara A.. Hann Martin. In March, 1897, the plaintiff in this action, having become of age December 21, 1896, filed a petition in the Surrogate’s Court praying that Ann Hann, executrix of Michael IT. Hann, be required to account. A citation was issued which was personally served on the executrix March 18, 1897, and in pursuance thereof she filed an account in the Surrogate’s Court showing that her testator received $1,000 from,life insurance which belonged to his ward, and that in 1892 he received $1,018 arising from the sale of real estate in Alabama, for which sums the guardia.n was liable to the ward. The executrix also reported that the estate of the testator was insolvent, and that she had received no property as executrix except eleven dollars which she had expended for funeral expenses, and that she knew of no other real or personal property of which he died possessed. Thereupon, March 26, 1897,, the Surrogate’s Court entered a decree adjudging that Michael H. Hann,' at the date of his death, December 2, 1895, had in his hands, as general guardian of .Clara A. Hann, the sum of $2,018, no part of which had ever been paid to her, and it was further adjudged that the executrix pay to the ward the sum of $2,018, with interest thereon from December 2, 1895 ; and also, it appearing that the estate of Michael H. Hann was utterly insolvent, that the ward have leave to prosecute the bonds given by Michael H. Hann as general guardian. April 22, 1897, this action was brought on the bonds to recover the sum adjudged by the Surrogate’s Court to be. due. The defendants Alonzo Porter and John M. Goodwin jointly answered, the defendant Ann Hann making default.
    
      Clarence A. Farnum, for the plaintiff.
    
      L. C. Vcm Fleet, for the. defendants.
   Follett, J.:

The decree of the Surrogate’s Court entered on the accoúnting by the executrix of the general guardian is, unless impeached for fraud, conclusive as against the sureties of the guardian as to the amount due from his estate to the ward. (Code Civ. Proc. §§ 2606, 2607; Douglass v. Ferris, 138 N. Y. 192, 201; Altman v. Hofeller, 152 id. 498.) Under subdivisions 6 and 11 of section 2481 of the Code of Civil Procedure the Surrogate’s Court had power, upon the application of the sureties, to vacate or modify the decree for fraud, newly-discovered evidence, clerical error or other sufficient cause. Whether the decree can be collaterally impeached for fraud in this action brought to recover on the bond need not be decided, for I am of the opinion that' the evidence produced on the trial fell far short of raising a question of fact on this issue. But if the evi-. dence was sufficient to raise an issue of fact, both parties having asked the court to direct a verdict, the finding of the court is conclusive unless it is wholly unsupported by the evidence. (Kirtz v. Peck, 113 N. Y. 222; McGuire v. Hartford Fire Ins. Co., 7 App. Div. 575.) On the trial the plaintiff abandoned her claim for $1,018 received by the- guardian upon the sale of the real estate of the ward upon the theory^ it is supposed, that the sureties of the special guardian instead of the sureties of the general guardian-were liable for this sum, the verdict directed being for the $1,000 received from the life insurance, with interest from the date of the guardian’s death. The defendants, for the purpose of impeaching the decree of the Surrogate’s Court, offered to show that the general guardian purchased an organ and a piano for the ward, and also paid a physician’s bill of $23 or $24 for services rendered the ' ward, and a music teacher for instructing the ward. These items were not taken into account in the Surrogate’s Court, nor was the general guardian allowed any commissions, but he was allowed the interest on the $1,000 to the date of his death towards the support of the ward.

As before stated, the ward was the grandchild of the guardian and lived in his family from the time she was about five years of age, and seems to have been brought up and cared for as a daughter. The fact that the grandfather gave her an organ and a piano, and paid her tuition for instruction in music and a physician’s bill, is altogether insufficient to authorize a finding that the accounting in the Surrogate’s Court was collusive or fraudulent. He had the right to make such small gifts, it not appearing that he was insolvent when made, and that he intended them as such is shown by his annual accounts in which those items were not charged. The guardian, having been guilty of devastavit, was not entitled to commissions on the funds in his hands.

Defendants’ exceptions should be overruled, their motion for a new trial denied, and a judgment ordered on the verdict in favor of the plaintiff, with costs.

All concurred.

Defendants’ exceptions overruled and motion for a new trial denied, with costs, and judgment ordered on the verdict in favor of the plaintiff, with costs.  