In re Camp , 57 N.Y. Sup. Ct. 388 ( 1888 )

Barnard, P. J.

The facts involved in the consideration of this appeal are uncontradicted. Calvin B. Camp was appointed general guardian for his ■three children in February, 1868. Ho inventory was ever filed. The children became of age, two over ten years before this proceeding was commenced to compel an accounting, and one over six and under ten years before the petition for, an accounting was filed. The petition was filed in the surrogate’s court which appointed the guardian. It was based upon section 2847, Code, which provides that the petition may be presented by the ward after he has arrived at majority. The surrogate ordered the guardian to account, and this • appeal is brought to reverse the order, by reason of the lapse of time since the infants severally arrived at the age of 21 years.

When the guardian received the moneys of the infants, it was his duty to invest the same in his name as general guardian for the infants. In contemplation of law, the fund at all times remained invested, as was required by law, and in a situation to be delivered over. The guardian liad no personal title. He held as trustee for the infants, and until he repudiated the trust, or in some way claimed a title to the fund in defiance of it, there was no beginning of the running of the statute of limitations. Reitz v. Reitz, 80 N. Y. 538; Mabie v. Bailey, 95 N. Y. 206. Ho importance can be attached to the ■ arrival of age of the beneficiaries. The general guardian could have terminated the trust, but he did not. He even kept all knowledge from the beneficiaries that there was any property belonging to the trust. This gave him no title to the property, which was “being kept entirely separate from the individual money and property of the guardian.” Seaman v. Duryea, 11 N. Y. 324. There could not, then, be a time when the hostile position of the guardian in respect to the fund could set in motion the statute of limitation, until express repudiation to the beneficiaries. In such case, the statute would», begin to run from the repudiation of the trust. Boughton v. Flint, 74 N. Y. 476. The order should therefore be affirmed, with costs. All concur.