Citation Numbers: 31 N.Y.S. 881, 90 N.Y. Sup. Ct. 426, 64 N.Y. St. Rep. 669
Judges: Bradley
Filed Date: 12/26/1894
Status: Precedential
Modified Date: 1/13/2023
This action was originally brought against Gabriel Wile, as general guardian of Eli Hofeller, an infant; Gabriel Wile, as administrator, etc., of Lilly Hofeller, deceased; Lehman Hofeller; and Schanette Wile. The purpose of the action was the exoneration of the estate of the plaintiffs’ intestate from liability in the relation which he had assumed as surety for the administrators, etc., of Sigmund Hofeller, deceased; and, with a view to that relief, the prayer of the complaint was that a judicial settlement be had of the accounts of Lehman Hofeller and Schanette Wile, as administrators of the estate of Sigmund Hofeller, deceased; that Schanette pay to Gabriel Wile, as such guardian and administrator, the amounts due from such estate to Eli Hofeller and the representative of Lilly Hofeller, deceased; and that Gabriel Wile be enjoined from prosecuting certain actions against the, plaintiffs, etc. Afterwards, in December, 1886, Lehman Hofeller died, leaving his last will and testament, in which he nominated Levi Adler as executor, to whom letters testamentary were duly issued; and on Feb
The view of the learned referee on the last trial was that, as the judicial accounting of the administrators was had in an action to which Eli Hofeller and his previous general guardian were parties, the accounting was conclusive upon the appellant, and that, as the judgment as to the administrators and general guardian was affirmed, it was rendered no less conclusive against the appellant by
The question is presented whether or not the fact that the administrators and general guardian were, as to the plaintiffs, concluded by the judicial settlement declared by the judgment, rendered it also conclusive upon the appellant, notwithstanding the reversal of it as to him. The view taken by the general term was that although, as between the plaintiffs and the administrators and the guardian, the latter was, by the judgment, charged with having received of or from the estate of Sigmund Hofeller, deceased, an amount sufficient to pay the distributive share to which Eli Hofeller was entitled, the latter, upon the facts as they appeared, was not required to treat such liability of guardian as having been created in such manner as to discharge the administrators, to that extent, from liability to him, the appellant. Upon that subject, in the opinion of the court delivered by Mr. Justice Dwight, it, with other things, was said:
“It is very apparent that the property may have come into the hands of the general guardian under such circumstances as to render both the guardian and the administratrix liable therefor to the infant beneficiary of the estate. * * * It is very clear that there is nothing in the fact that the guardian*884 bad become charged, which of itself discharges the administratrix; and the assumption to the contrary is, as we have already said, the fundamental error of the conclusions of law of the referee in this respect. He finds as-a fact ‘that from the date of the marriage of Gabriel to Schanette, in January, 1880, Gabriel took possession of the property of Eli Hofeller, the-son of his wife, Schanette, and who from that time was a member of his family, and acted and assumed to act as the guardian of Eli’s property;, and that between January, 1880 and September 14, 1881, the following sums. of money-from the estate of Sigmund Hofeller, deceased, were paid to him by Schanette Wile, or collected and received by him with her knowledge and consent, as follows, to wit’; and here follows a statement of moneys-received by Gabriel before his appointment either as guardian of Eli or as administrator of Hilly, aggregating the sum of nearly $12,000. It is very clear that for no part of this money was Schanette discharged from liability as administratrix, albeit Gabriel did become charged with liability therefor as-guardian upon his subsequent appointment as such. And the same is equally true of other funds and equitable assets of the estate which came into his hands after his appointment as guardian, if and so far as they came into his hands as the husband or agent of his wife, and not as guardian of his ward, or were either collusively or negligently permitted by the administratrix to be-received and disposed of by him for his own benefit.” And it was there further said that “effect was given to the erroneous principle adopted by the referee, by crediting to the administratrix in her account all the funds and assets, legal or equitable, of the estate, with which the guardian had become by any means ehargable.” Altman v. Wile (Sup.) 19 N. Y. Supp. 500.
Thus are presented some of the facts and some of the reasons by which the general term was led to the conclusion that the appellant was entitled to a new trial, notwithstanding, as between the-plaintiffs and the other defendants, Gabriel Wile was charged with, liability to an amount adequate to discharge his obligation as guardian and administrator; and upon those facts, and for those reasons,. Schanette Wile, as administratrix, remained liable to Eli Hofeller. The law of the case, for the purposes of the new trial of the issues between the plaintiffs and the defendant Hofeller, is that declared by the general term, and therefore, on the new trial to which he is-entitled upon the merits, he is not concluded by the judicial settlement of the accounts as between the plaintiffs and the other defendants determined by the judgment. When the judgment as against the' appellant was reversed, it ceased to be an estoppel as to him, and the reversal, in its practical effect, for the purposes of inquiry by him upon the new trial into the state of the accounts of the administrators of the estate of his father, deceased, and into the state of the accounts legitimately as such between them and the general guardian, is substantially the same (except for the purposes of a new trial therein) as if he had not been a party to the-action; and if there be established any liability of the administrators, or of either of them, to him, he may eventually have his remedy upon their bond. Code, § 2607; Sara v. Oakley, 122 N. Y. 631, 25 N. E. 263. The judgment should be reversed, and a new trial granted; costs of this appeal to the appellant to abide the final award of costs. All concur.
19 N. Y. Supp. 500.