Smith v. Bixby

The Surrogate. The testimony in this case justifies the conclusion of the referee that the expenditures for the benefit of the ward were necessary and proper so far as the ward personally was concerned, and if there had been sufficient- funds applicable thereto, in the hands of [198] the guardian, fie could not have been adjudged guilty of its improper use. I am also of the opinion that, if there had been sufficient funds so applicable in the hands of the executor Jarvis, an order for its payment to the guardian would have been made, upon a proper application therefor. And 1 am disposed to hold that, for the purposes of this accounting, that which would have been ordered on the facts proved, should be allowed to the guardian. But the motion has been submitted upon the assumption that all the fund in the hands of the executor, belonging to the ward, might have been ordered by the Surrogate to be devoted to the maintenance and education of the ward. In that, however, the counsel are clearly in error. The will provides, in substance, that the income of the fund in the hands of the executor Jarvis might be used for the support of the ward, among others, the principal to be paid on her attaining her majority. It is clear that this court has no power to require a violation of the provisions of the will. So that the guardian should be allowed, on account of his disbursements, the sum of §387.73, together with so much income as has been realized by the executor upon the ward’s share iu her deceased father’s estate. The application of the guardian for an adjudication that the ward is indebted to him for the balance of his disbursements for her benefit, cannot be sustained, for two reasons : first, because he had no right to make advances over and above the fund applicable to her support, and so make an infant liable therefor; second, because this proceeding is not to adjudge an obligation on the part of a ward for the act of the guardian while she [199] was an infant, though she might be liable for necessaries in a proper action. Hence the exception to the finding that the guardian is entitled to reimbursement in full should be sustained, and the report, in the above particulars, modified. The exception to the allowance of certain disburse- • ments without proper vouchers or proof should be overruled, to the extent of the above allowances, for the reason that the sums, under $20 and not vouched, do not exceed in the aggregate the sum of $500. Ordered accordingly.