Martin v. Hann

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.