Welch v. Gallagher , 2 Dem. Sur. 40 ( 1884 )

The Surrogate.

This proceeding is instituted upon the petition of Bridget Welch to" compel the general guardian of her infant children to account, and to pay an alleged claim held by her against said guardian.

The guardian disputes the validity of this claim, and moves the dismissal of the proceeding, on the grounds that it is not authorized by statute, and that the Surrogate has no jurisdiction to litigate, and pass upon, a disputed claim. The objections are tenable. The supervision over guardians possessed by the Surrogate, and his power as to the settlement of their accounts, are purely statutory, and must be exercised within the limits of the statute (Matter of Dyer, 5 Paige, 534).

Sections 2842-2845 of the Code of Civil Procedure provide for the filing of an annual inventory and account by a guardian, and for their examination by, or under the direction of, the Surrogate, and vest him with the authority to require the filing thereof, and the rendition of a more “full or satisfactory” account, etc., if the interests of the ward seem to justify it. These proceedings are ex parte, and are made wholly dependent upon the Surrogate for them fulfilment. They are not based upon any petition by an interested party, and conld not be required at the instance of any one. The statute did not contemplate these proceedings as the basis of a creditor’s application to get his debt, nor as a judicial settlement of the guardian’s accounts (see Diaper v. Anderson, 37 Barb., 168), but provided them to protect the ward’s estate, and prevent its dissipation through the carelessness or malfeasance of the guardian.

The only authority found in the Code for the compelling of an account of a guardian on the application of any one is section 2847. That section provides that the ward, “ after he has attained his majority,” an “executor or administrator of a ward who has died,” or the “guardian’s successor ” may present a petition praying for a judicial settlement of the accounts of a general guardian. The case under consideration does not come within the compass of this section. The petitioner is not one of the persons named, upon whose application the proceedings can be entertained.

Section 2846 of the Code of Civil Procedure simply authorizes the use of the infant’s property for his education and maintenance upon the application of any person in his behalf. That section certainly does not provide for the payment of a debt already incurred.' Such is not its purpose, and its language cannot be tortured into any such meaning.

There is another insuperable objection to this proceeding. The claim presented by the petitioner, and which is the foundation of the application, and payment of which is sought by her, is disputed by the guardian. The Surrogate’s court has no power to ascertain and determine a claim of this kind (Tucker v. Tucker, 4 Keyes, 136; Stilwell v. Carpenter, 59 N. Y., 414, McNulty v. Hurd, 72 N. Y., 518).

There is nothing in the Code of Civil Procedure enlarging the power of the Surrogate over disputed claims (Greene v. Day, 1 Demarest, 45; Giles v. DeTalleyrand, id., 97).

These cases arose against an administrator or executor, but the want of power in the statute was the reason for deciding that the Surrogate’s court did not possess jurisdiction, and as there is nothing in the statute investing the court with such power in case of a claim presented to, and disputed by, a guardian, it follows that the Surrogate cannot adjudicate upon such a claim. His authority over a guardian is defined by the statute and cannot be extended to cases outside the scope of this power.

There is nothing in the petition alleging misconduct on the part of the guardian, or asking for Ms removal, so that jurisdiction is not acquired for that purpose. The proceedings should be dismissed with ten dollars costs, and I so direct.