Graff v. Mesmer

A settlement of the account by the Probate Court, and an order to pay the amount found due, is necessary in order to maintain a suit against the sureties. ( Stilwell v. Mill, 19 Johns. 303 ; Salisbury v. Van Holsen, 3 Hill, 77.)

[637]Glassell, Chapman, and Smiths, for the Respondent.

The account filed by Temple was sufficient to enable us to maintain this action. (Brown v. Snell, 57 N. Y. 297.)

There has been a breach of the bond. (1 Williams on Executors, p. 446.)

By the Court : Under secs. 1629 and 1789 of the Code of Civil Procedure, the guardian, notwithstanding the revocation of his letters, might have been cited by the Probate Court to render his final account, the settlement of which by the Court would have conclusively established the amount due to the ward, even as' against the sureties in the official bond of the guardian. If, on being cited for that purpose, the late guardian had refused or neglected to render the account, he might have been compelled by attachment to do so ; or if, for any reason, that remedy was unavailing, the Court might have caused the account to be made up, audited, and settled upon such evidence as should be adduced on behalf of the ward. It appears from the findings that in March, 1876, the then guardian filed in the Probate Court a statement of his accounts, showing a balance then due to the ward; but this account was never settled or allowed by the Court, and no final account was rendered by the guardian prior to the revocation of his letters in the succeeding August, nor at any time thereafter, so far as the case shows. On these facts, we are of opinion that an action will not lie against the sureties in the bond, to recover the balance shown to be due by the account rendered in March, 1876. It is the peculiar province of the Probate Court to settle the accounts of guardians; and as we have seen, it has authority to do so, even after the letters are revoked. The statute contemplates that its power in that respect shall be exclusive in those cases in which the necessary authority has been conferred, as in this case. If the rule were otherwise, a suit against the sureties on the official bond would often involve the settlement of a complicated account before a jury instead of a Probate Court, which possesses peculiar [638]