#### Matter of the Judicial Settlement of the Accounts of James M. Ransier, as General Guardian of Jammie E. Ransier.

(Surrogate’s Court, Onondaga County,

March, 1899.)

Surrogate’s Court —Bights of the sureties of a general guardian measured by an erroneous judgment in partition, never appealed from.

Although a judgment in partition rendered in 1869 erroneously declares that the father of an infant son, and who was also his guardian *ad Utem*in partition, has a right as tenant by the curtesy in the son’s share, a surrogate’s court has no power, while the judgment stands, to direct the father, upon his accounting in 1899 as general guardian of the son even though the fund has-been lost and the father is insolvent, to pay the fund to the son unless the father consents thereto, as his sureties as general guardian have a right to rely on the judgment in partition as the true measure of the respective rights of the father and son in the fund. To accomplish a transfer of the fund to a proper custodian, in the absence of the father’s consent, resort must be had to a court of general jurisdiction.

Judicial settlement of the accounts of a general guardian.

E. M. Wells, for petitioner and Jammie E. Ransier.

Hiscock, Doheny, Williams *&*Cowie, for Trust *&*Deposit Company of Onondaga, as executor of Henry J. Mowry, a deceased surety.

Glass, S.

The petitioner, James M. Ransier, was appointed the general guardian of his son in May, 1868. The son became of age in 1888. Soon after the petitioner’s appointment an action was commenced and prosecuted in the Supreme Court for the partition of the real property of William Stilwell, the grandfather of the infant. One-sixteenth of the property sought to be partitioned had descended to the infant, as an heir-atrlaw. The mother of the infant, who was the daughter of William Stilwell, had died five years prior to her father’s death.

The infant’s father was also appointed his guardian *ad litem*in the action in partition. The real estate, which was the subject of the partition action, was sold under the judgment in the action *583which was entered in March, 1869: It was provided in the judgment as follows:

> “ It is ordered that the referee pay to the treasurer of Onondaga county one-sixteenth of the proceeds of the sale of said premises for the use and benefit of Jammie Ransier, an infant, subject to the right by curtesy of his father James Ransier in and to the same, and the value of which may be determined by this court, and when so determined the sum to which each may be entitled respectively, by said treasurer paid to each.”

The infant’s one-sixteenth share, amounting to $656.06, was paid over to the general guardian in years 1869 and 1871, and after the payment of some expenses for the support of the infant, a balance of $638.56 was in the hands of the guardian on the 15th day of August, 1872. This balance was mingled by the guardian with his own funds in his business and was soon lost; the guardian is now utterly insolvent.

It does not appear how the fund came to be paid over by the county treasurer to the general guardian. Diligent counsel have been unable to discover any order or judgment of the Supreme Court authorizing the transfer; nor does it appear that any determination was ever had in the Supreme Court, of the amount of the respective shares of the father and son in the fund, contemplated by the judgment entered. The guardian, in his account filed, has not charged himself with any interest upon the funds, and objection has been made by the ward that interest should be charged against the guardian since the receipt of the principal by him nearly thirty years ago.

It is urged that the ward’s mother having died before her father, the one-sixteenth share descended directly from the grand- ’ father to the grandson, and, consequently, that no tenancy by the curtesy existed; and that the judgment entered in the Supreme Court, in so far as it adjudged tenancy by the curtesy to exist, was erroneous.

From the proofs in this proceeding, it is clear that the ward’s mother did die five years before her father; and if this court had the power, it would be compelled to conclude that the judgment entered in the Supreme Court was erroneous in the respect mentioned; but it has no such power; it cannot review the determination of the Supreme Court. That adjudication of the rights of the father and son in the fund in question, so long as it stands unappealed from and not modified, must be accepted in this proceeding *584as binding upon all parties to this proceeding who were parties to that action. The Supreme Court has declared by its solemn judgment that the father is entitled to the use of the fund during his life, and this court has no right to say he is not. Without any question whatever, the ward’s father, acting as his guardian *ad litem*in the partition action, was guilty either of gross negligence or gross fraud in allowing or procuring the judgment to be entered as it was entered; but that negligence or fraud attached solely to his capacity as guardian *ad litem*in the action, and not to his office as general guardian. For the damages sustained by the ward by reason of such negligence or fraud he must look to the father as guardian *ad litem,*and his sureties as such, and not to the sureties of the general guardian.

The ward has seen fit to come into this proceeding with the adjudication of the Supreme Court staring him in the face.

That judgment has stood unquestioned for thirty years, and the last ten of the thirty have gone by since the ward reached full age. Upon proper and timely application by the ward after he became of full age, the Supreme Court would doubtless have righted the wrong by a prompt modification of the judgment, but no efíort in that direction has ever been made. It is the ward’s own fault if under our Statute of Limitations it is now too late to make the attack.

His neglect to assail the judgment has amounted to" a ratification of it.

The guardian’s sureties during all these years have had a right to rely upon the judgment of the Supreme Court as the true measure of the respective rights of the father and son in the fund and they are now entitled to its protection; they will be bound by the decree which is to be entered in this proceeding so far as it shall determine the amount of the ward’s property which is, or ought to be, in the hands of the guardian. Altman v. Hoffeler, 152 N. Y. 503. The fact that the guardian received the funds as such guardian did not lessen his right to their use during his life. Matter of Camp, 126 N. Y. 377.

' It must be held, therefore, that the guardian has been entitled to the income from the fund in question since he received it, and will be entitled to such income during his life. Under the authority of the Camp matter, above cited, the guardian cannot, in this proceeding, be compelled to pay the fund over to the ward, unless he sees fit to consent thereto; nor, unless such consent is given, can this court make any direction reqmrmg him to pay over the fund *585to a suitable trustee even though the loss of the fund by the accounting guardian is confessed.

To accomplish a transfer of the fund to a proper custodian, in the absence of such a consent, resort must be had to a court of general jurisdiction.

It is assumed that the guardian stands ready to file such consent; if he does so before the decree is entered herein, the decree will direct him to pay over to his former ward the balance of principal in his hands, $638.56. If such consent is not filed, the decree will adjudge the amount of principal belonging to said infant in the hands of the guardian to be said sum of $638.56, without prejudice to such further action or proceeding, relating to the custody of said fund, as may be advised.

The ward and the executor of the deceased surety, Howry, are each allowed costs of this proceeding against the petitioner.

A decree may be entered on two days’ notice.

Decreed accordingly.