#### Matter of the Judicial Settlement of the Account of Frederick J. Wolfe, as General Guardian of Charles P. Wolfe, Deceased.

(Surrogate’s Court, Saratoga County,

January, 1912.)

Guardian and ward — Accounting and settlement — Actions — Rights of action by guardian.

A surrogate is without power to compel a guardian appointed by him to account for money received by the guardian after the death of his ward and claimed to be part of the latter’s estate.

Where a guardian paid from his own funds, the amount necessary to revive a policy of insurance upon the life of his ward, which had lapsed at the time the guardian was appointed by the surrogate, and was not in terms payable to any specific person, and the insurance company _ on the death of the ward pays the amount due 'on the policy to the guardian' who claims it' as Ms own, he cannot, be' compelled to account therefor as guardian..

Upon the' death of the ward, the authority of the guardian ceased, and his liability, if any, for the money received on the insurance policy must be determined in an action' to be' brought by the administrator of the deceased ward.

This is a proceeding for the settlement of the accounts of a guardian. The ward having died, the guardian filed his *455petition for the judicial settlement of. his. accounts. An administrator of the deceased ward having been appointed, said administrator appeared and filed objections to various items of the account, all of which were abandoned upon the trial, with the exception of *&*claim for moneys received by way of insurance upon the life of the ward, the facts concerning which are set forth in the opinion.

Butler & Kilmer, for petitioner.

James White (George R. Salisbury, of counsel), for administrator.

Ostrander, S.

The only controversy upon this accounting arises over the disposition of certain moneys, amounting to $230.88, paid by the Prudential Insurance Company of America, pursuant to a policy issued by -it upon the life of Charles P. Wolfe, the ward, now deceased.

Prior to the appointment of Frederick J. Wolfe as guardian of the deceased ward,. the Prudential Insurance Company of America issued a policy upon his life. The policy was not in terms payable to any specific person. In said policy it was provided that said company “ Hereby insures the life of the person herein designated as the Insured, and agrees to pay the benefit stipulated in the following schedule, subject to the conditions, privileges and provisions contained on the second, third and fourth pages hereof, which are hereby made part of this contract.” 0

And the only provisions pertaining to the payment which are material to this controversy are the following: “Facility of Payment—The Company may make any payment provided for in this policy to any relative by blood or connection by marriage of the insured, or to any other person appearing to said Company to be equitably entitled to the same .by reason of having incurred expense on behalf of the insured, for his or her burial, or, if the insured be more than fifteen years of age at the date of this policy, for any other purpose, and the production by the Company of a receipt signed' by *456any or either of said persons or of other sufficient proof of such payment to any or either of them shall be conclusive evidence that such benefits have been paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied.” ■

“ Revival of Policy.— If this policy he lapsed for nonpayment of premium, it will be revived within one year from, the date to which premiums have been duly paid upon payment of all. arrears, provided evidence of the insurability of the insured satisfactory to the Company be furnished.”

"At the time of the appointment of Frederick J. Wolfe as guardian, the policy had lapsed for non-payment.of premium,1 and thereafter said Frederick J. Wolfe paid from his own funds the moneys necessary to revive the policy and to keep it in force to a time later than the death of the ward.

Subsequently to the death of the ward, the insurance company paid the amount due upon the policy, $230.88, to said Frederick J. Wolfe, who claims to have received it as his individual property.

This claim is contested by the administrator who claims that the guardian, Frederick J. Wolfe, should account for this money as' funds of .the estate of his ward which came to him in the administration of his duties.

It has been held that the power of the surrogate to control the conduct of executors and administrators does not extend to property to which as executors or administrators they have no title or right, of possession. Matter of Blow, 2 Con. 360, 371. In Rait v. Rait, 1 Bradf. 345, it was held that the surrogate had no authority to compel a guardian to account for moneys received by him prior to his appointment as such guardian, and that such authority was • commensurate "with acts or neglects of duty occurring during the period of the official authority of the guardian.

In Muir v. Wilson, 1 Hopk. Ch. 512, a general guardian of a ward had been appointed and later was appointed as special guardian for the purpose of .selling the lands of the infant. The funds received upon the sale were turned over to the general guardian, and it was held that the general guardian, as such, was not accountable for the funds so received. *457as he -did not receive them by virtue of his office as' general guardian; and the principle seems to hold in all these cases that a guardian, executor or administrator cannot be held accountable for funds which he had no authority by virtue of his letters and appointment to collect. The remedy in such cases appears to be by way of an action in a court of general jurisdiction to recover the funds from the person wrongfully receiving and holding the samé.

Applying those principles to the case in hand: When Charles P. Wolfe died, the authority of his guardian ceased; and it then became his duty to account for and hand over the funds in his possession, after deduction of his proper charges and disbursements as such guardian, to the administrator of the ward.

If the proceeds of this insurance policy belonged to the estate of the ward, they did not become payable until a period subsequent to the death of the ward, and Frederick J. Wolfe as guardian corild have no action or proceeding to recover the same from the company during the period of his office; and whatever he did subsequently to the death of the ward, he did, not as guardian, but individually, and his sureties cannot be held-upon this accounting for any acts which the guardian did, acting outside the scope .of his authority as guardian.

It follows that, if any recovery is to be had from Frederick J. Wolfe for the moneys received by him upon this policy, it must he by way of an action by the administrator against said Frederick J. Wolfe in some other court than this.

It follows tha't the guardian should not be charged upon this accounting with the amount of insurance moneys received as aforesaid.

. Let findings and a decree to that effect be submitted.

Decreed accordingly.