Clowes v. Van Antwerp and wife

Clowes v. Van Antwerp and wife. Practice m Surrogate’s court. — Allowance to guardian. After a cause has been submitted to the surrogate for decision, and the parties have separated, it is too late, for one of them to withdraw his claim. A general guardian cannot he allowed for services rendered, or expenses incurred by him, prior to his appointment; nor will a promise by the ward, after coming of age, to pay the same, authorize such allowance. Clowes v. Van Antwerp, 4 Barb. 416, affirmed. Appeal from the general term of the Supreme Court, in the third district, where a decree of the surrogate of Albany county had been affirmed, with costs. (Eeported below, 4 Barb. 416.) On the 10th April 1841, Thomas Clowes, the appellant, who had been the general guardian of Martha Ñ. Wis-wall (afterwards Mrs. Van Antwerp) was cited to account before the surrogate of Albany. It appeared on the accounting, that Clowes had received a legacy belonging to his ward, amounting to $567.38. In addition to his regular commissions and expenses, the account contained a charge of $150 for solicitor’s and counsel fees, including expenses in obtaining the money, &c.; which was disputed. It appeared, that the alleged services were rendered before the accountant’s appointment as guardian. The surrogate denied an adjournment, which was stated, on the argument, to have been asked, for the purpose of showing that Mrs. Van Antwerp promised to pay for the services in question, after she became of age. The surrogate also, after the case had been submitted, and the parties had separated, refused an application on the part of the accountant to withdraw his claim for these services. The surrogate refused to allow the charge of $150, and the guardian appealed to the supreme court, where the following opinion was delivered by— Parker, J. — “It is claimed, on the part of the appellant, that the surrogate erred in refusing an adjournment. It appears by the return, that after it was announced that the appellant’s claim for $150 would be .controverted, an adjournment was had, by consent of parties, from the 18th of May 1841, and that the accounting was subsequently adjourned, by stipulation, until the 7th of June 1841, when the appellant proceeded to introduce witnesses in support of his claim. Afterwards, the appellant applied for an adjournment, which was objected to by the respondents, and refused by the surrogate, on the ground that the appellant had not shown that the witnesses were material, and that he had taken no steps to procure their attendance. There was, certainly, no good reason shown for an adjournment of the cause, at that stage of the proceedings; and, I think, the surrogate decided correctly, in refusing it. “It is also objected, that the surrogate ought to have permitted the appellant to withdraw his claim, after it had been submitted. The request to be permitted to withdraw the claim, was not made until after the cause had been argued and submitted, and adjourned for decision. Afterwards, on the same day, the appellant applied to the surrogate ex parte, to be permitted to withdraw his claim; and repeated his request, when the parties met before the surrogate, to hear his decision. I think, it was too late, to withdraw the claim, after the submission of the cause, and the separation of the parties. (Hess v. Beekman, 11 Johns. 457; Lathrop v. Briggs, 8 Cow. 171.) “The principal question involved in this appeal is, whether the surrogate erred in refusing to allow that item in the appellant’s account, charged as 'fees, solicitor and counsel, including expenses in obtaining money, &c., $150.’ If any part of this charge was pro* perly allowable, it was, as proved by Mr. Frothingham, to the extent only of one-half the sum charged. But I do not see, upon what principle, any part of the charge could have been allowed, on the proof before the surrogate. It appeared, that the services in question were all rendered, before the appellate’s appointment as guardian, and it does not strengthen the claim at all, that the appellant was employed by the minor; she was incapable, in law, of contracting for such services. Upon the settlement of the accounts of a guardian, the surrogate is not authorized to make any allowance to such guardian, for services rendered, or expenses incurred, by him, previously to his appointment as guardian; such services and expenses are not those of the guardian. And for the services of the guardian, as such, the compensation is limited to the commissions allowed by law. (2 R ¿1. 214, § 36, 3d ed.) “Nor would it have established the claim of the appellant, before the surrogate, if he had proved a promise to pay for such services, made by the ward, after she became of age. Such promise might give a right of action in a court of law, for personal services, hut not a right to charge as guardian. In such a case, it would be a promise, after the guardianship ceased, to pay for services rendered, before the guardianship commenced. Over such matters, the surrogate had no jurisdiction. “ The decree of the surrogate was right, and must be affirmed, with costs, but without prejudice to the appellant’s right to recover for his services, in a court of law.” From the decree of affirmance, entered in pursuance of this opinion, the guardian appealed to this court. Clowes, appellant, in propriâ personâ. Reynolds, for the respondent. [MAJORITY — Per Curiam.] Per Curiam. — The decree must be affirmed, for the reasons given by Parker, J., in the supreme court. Decree affirmed.