Prentiss v. Weatherly

FOLLETT, J. The learned counsel for the defendants insists that the plaintiff cannot maintain this action for three reasons: (1) That it cannot be brought by a general guardian, but should have been by a guardian ad litem; (2) that it should have been brought by a new administrator, appointed in the place of Ward, removed; (3) that leave to bring it has not been granted by the surrogate’s court.; The answer to the first objection is that section 2607 of the Code of Civil Procedure provides that an action may be maintained on an administrator’s bond by and in the name of the person in whose favor the decree was made. The decree of the surrogate’s court directed the administrator to pay over to George L. Prentiss, general guardian of the estate of Marie Carleton, $3,140.30, upon Ms giving the security required by section 2746 of the Code. TMs brings the case witMn the section, wMch expressly authorizes a general guardian to maintain the action. The decree was not in favor of a guardian ad litem, and the action could not have been maintained by one. November 27, 1891, the plaintiff executed a bond pursuant to section 2746 and the decree, wMch perfected the plaintiff’s right to bring tMs action. The body of the bond is contained in the case, but the record does not show that it was “approved by the surrogate,” as required by the section last cited. The answer to tMs is that no such question was raised on the trial of the action. The bond, as printed, does not appear to have been acknowledged, but its admission in evidence was not objected to on tMs or any other ground. The fact that an acknowledgment and an approval are not printed as a part of the record does not prove their nonexistence. The original bond, being a record, can be received in evidence on tMs appeal for the purpose of sustaining the judgment. Wines v. Mayor, etc., 70 N. Y. 613. There is nothing in the position that a new administrator should have been appointed, who should have brought the action. The decedent’s estate was finally settled, and there "was no occasion for the appointment of a new administrator. By the decree the liability of the administrator to tMs plaintiff was established, and Ms right of action was perfect. Section 26091 of the Code provides that an action brought thereunder shall be by leave of the surrogate. That section does not relate to actions Eke the one at bar, but to actions brought “by any [683] persons aggrieved, * * * in behalf of himself and all others interested.” The defendant urged on the trial that the surrogate’s decree was procured through the fraud and collusion of Ward, the administrator, and this plaintiff, and for that reason was not binding on the administrator’s sureties. Upon an examination of the record we are of the opinion that there is not sufficient evidence of collusion to have justified the submission of the question to the jury. The administrator filed two accounts,—the first, December 1, 1890, which showed an indebtedness to the estate of $3,413.87; the second account, upon which the decree was made, was filed in March, 1891, by which the administrator charged himself with $3,503. The difference—$89.13—is accounted for by the amount charged for counsel fee, which was stated in the first account as $500, and in the second account the item was stated and allowed at $410.87. There is no claim that the first account was not voluntary, and made by the administrator in entire good faith. The point that the surrogate could not finally settle the accounts of the removed administrator without appointing a new one is not well taken. Section 26932 was not intended to be mandatory, as is clearly shown by section 2609. When an estate has been fully administered, as in the case at bar, the surrogate’s court is not required to go through with the needless formality of appointing an administrator. It is also urged that the appointment of the plaintiff as general guardian was illegal, because the letters do not show, on their face, that a citation was issued to the person (Ward) formerly appointed general guardian. The petition in the proceedings resulting in the appointment stated all the necessary facts, and prayed that a citation be issued to Ward, the late guardian, to show cause, etc. It was prepared in January, 1891, but the case does not show when it was filed. The plaintiff was appointed March 9, 1891, so that there was ample time for the service, and return of the citation. The mere fact that the issuing of a citation is not recited in the letters is not proof that a citation was not issued and served. A further answer to this point is that it was not taken on the trial below. If it had been, it might have been obviated by producing the citation. The judgment should be affirmed, with costs. All concur. Footnotes [1] ode Civil Proc. § 2609, provides: “Where the letters of an executor or administrator have been so revoked, and no successor is appointed, any person aggrieved may, upon obtaining an order from the surrogate granting him leave so to do, maintain an action upon the official bond of the executor or administrator in behalf of himself and all others interested.” [2] Code Civil Proc. § 2693, provides: “When all the executors or all the administrators to whom letters have been issued die or become incapable, as prescribed in section two thousand six hundred and ninety-two, or the letters are revoked as to all of them, the surrogate must grant letters of administration to one or more persons as their successors in like manner as if the former létters had not been issued.”