
    New York County,
    February, 1889.
    Hon. RASTUS S. RANSOM, Surrogate.
    Matter of Wright.
      In the matter of the judicial settlement of the account of Charles S. Wright as general guardian of Florence Wright, an infant.
    
    Where the father and general guardian has not sufficient means for the support of himself and the child, he will, upon the judicial settlement of his account as guardian, be allowed credit for such sums as he necessarily expended before his appointment as guardian, for the support of the infant.
    The strict rule laid down in the earlier cases has been changed by the more • liberal application of the rules of equity, and where it is shown that the guardian was justified in making such payments before his appointment as guardian, they will be allowed.
    Application by Charles S. Wright the father and general guardian of Florence Wright, an infant, for. the judicial settlement of his account, and the revocation of his letters of guardianship.
    N. D. Ditmars, for Charles S. Wright.
    Benjamin B. Foster, special guardian of Florence Wright, an infant.
    
    
      
       See further proceedings in this matter, infra, p. 287.
    
   The Surrogate.

No objection is made to a decree for revocation. The only questions arising are upon certain credits claimed by the guardian. These may be divided into two classes: (1) expenditures made on behalf of the infant subsequent to his appointment ; (2) expenditures made in behalf of the infant prior to his appointment. To entitle him to credit for either of these classes of payment, it was essential that the guardian should show his incapacity to support the infant (his daughter), and an order was made sending the matter before an assistant to the Surrogate to take testimony upon that subject, and report it to the court. Such testimony has been taken and to my mind fully establishes that his income was not sufficient for the support of himself and the child, and that he was justified in drawing on his ward’s estate. The fact being proven, a question arises as to an allowance to the general guardian of such sums as were expended by him prior to his appointment.

In the case of Clowes v. Antwerp, 4 Barb. 418, it was held that upon a settlement of the accounts of a general guardian the Surrogate is not authorized to make any allowance to such guardian for services rendered or expenses incurred by him previous to his appointment as guardian.

In Voessing v. Voessing, 4 Redf. 360, the father of an infant died in 1870, leaving a widow and one child. In 1873 the widow was appointed guardian of the child, who had been maintained by her since the death of its father. The facts as to her inability to support her child were fully established. It was held by Surrogate Coffin that the guardian should be allowed not only for her maintenance of the ward during the time she acted as such, but also from the time of its father’s death, and that her encroachment on the fund having been on the whole, for the welfare of the ward and necessary for its support, should be sanctioned.”

This case was decided in 1880 and is the decision of a single judge. The case of Clowes v. Antwerp, supra, was decided in 1848, but is not referred to in the opinion of the learned Surrogate.

In Hyland v. Baxter, 98 N. Y. 610, the intestate died in 1862, leaving a widow and three minor children. No guardian was appointed for the children until 1872, when one Zimmer was appointed. The children continued to live with their mother, who was a co-administrator of the intestate, and maintained them for several years, the means being supplied by her co-administrator. These advances were set out in the account of her co-administrator who claimed credit therefor. It was referred to an auditor, who reported that the distributive shares of the minors were expended by the administratrix in their maintenance, and under such circumstances that if she had been general guardian the expenditure would have been allowed on her accounting as such general guardian. But the auditor further reported that the administratrix had no right as administratrix to make such payment, and that the Surrogate had no power upon the accounting of the administrators to allow them such credit on their account. The Surrogate adopted the conclusion of the auditor, and, pending an appeal to the Supreme Court from this decree, this action was brought to have the amount so advanced applied in deduction of the sums adjudged against the administrators on account of the distributive shares of the children. The appeal from the Surrogate’s decision was still pending and undetermined. The defendants succeeded in this action. The general term affirmed that decision, and on appeal to the Court of' Appeals the court cited approvingly numerous cases upholding the power of a court of equity to make allowances out of the estate of infants for past maintenance, and while confirming the decision of the general term, dismissing the complaint, on the ground that the decision of the Surrogate was res judicata, said, “ that the objection to the allowance of the sums necessarily expended for the support of the infants seems very inequitable.”

The matter of Bostwick, 4 Johnson’s Chancery 105, was an application by the mother of certain infants who had a life estate in the property in which the children had the remainder, that part of the principal which after her death would go to her children might be applied toward their maintenance, and that the executors pay her the amount of a debt already incurred, and an annual allowance out of the principal for the support of the children. The application was granted in both respects, the court saying, “ It would lead to great inconvenience (not to do so) for though the wants of an infant might he ever so pressing, he could not receive any maintenance (charity excepted) without the expense of a suit and reference to a master.”

In view of these cases, the thought at once strikes us—and does so in this case—why did not the general guardian, prior to making these expenditures, apply to a proper court for his appointment as guardian, or for the advancement of a sum of money for the purpose. This natural query is answered by the Court of Appeals in Hyland v. Baxter, supra : “ The general principle has been applied in many cases that an allowance for past maintenance may be made to executors, trustees, or guardians upon an accounting, or upon petition, even when it requires a breaking in upon the capital, provided the expenditure for which reimbursement is sought would have been authorized by the court if an application had been made in advance,” thus establishing that mere laches will not affect the action of the court.

The latest case casting any light upon this point which I have been able to find, is the Matter of Miller, 34 Hun 268. In this case the testatrix died in 1869, leaving a child. The will of the testatrix contained a request that the executor should be the guardian of this child. The executor supported the infant from 1869 to 1883. In 1880 the executor was appointed guardian of the child. On his accounting in 1883, he credited himself with the expenses of the maintenance of the infant for ten years. It appeared that he had used the money in his hands as executor for the support of the infant. The court said: “We think that undoubtedly, in a proper case a guardian may be allowed for necessaries furnished to the infant before the guardian’s appointment.”

A singular fact is that this is the first decision in which the case of Clowes v. Van Antwerp, supra, is referred to by the court. It was simply cited in the brief of the appellant in Hyland v. Baxter, in the Court of Appeals, but was not commented upon by the court.

It will be perceived from this review of some of the more important cases touching this subject, that each case depends in a great measure upon its peculiar circumstances. The broad rule as laid down in the first case quoted, Clowes v. Van Antwerp, while in terms not overruled or limited, has certainly been ignored. The more liberal application of the rules of equity applied in these later days would undoubtedly sanction a modification of its rigidity, to accord with the decision I have reached, viz.: That the guardian was justified in making the payments he did before his appointment as general guardian, and should be allowed therefor in his account.  