In re Camp , 98 N.Y. Sup. Ct. 204 ( 1895 )

BROWN, P. J.

The rights of the petitioners and their father, Calvin B. Camp, in and to the fund in question, were fully discussed and settled in the proceeding instituted during Mr. Camp’s lifetime. The court of appeals decided that Calvin B. Camp received the fund as guardian for his children, subject to his individual right to the use of the same for his own life; that the surrogate had power to direct an accounting; but that payment to the infants could not be directed during the guardian’s lifetime. Accordingly, the decree of the surrogate directing immediate payment to the petitioners was reversed, and the accounting directed to proceed anew. In re Camp, 126 N. Y. 377, 27 N. E. 799. Pending the new accounting, Mr. Camp died. Thereupon' this proceeding was instituted. Jurisdiction to direct the executor of a deceased guardian to account is conferred upon the surrogate by section 2606 of the Code of Civil Procedure. There is no denial in the answer of the allegations in the petition as to the prior proceedings against Mr. Camp; and, it having been there determined that he was bound to render an account of Ms proceedings as guardian, that question is not open for consideration here. It is to be taken as a fact that the fund was received by Mr. Camp as guardian. The appointment as guardian having been admitted, the right of the petitioners to an accounting was established. The order must be affirmed, with $10 costs and disbursements. All concur.