Seaman against Duryea and others

Seaman against Duryea and others. A surrogate has jurisdiction to compel the guardian of a minor, appointed', by him, to account as to the estate of the infant. On a final accounting he has authority to settle the account of the guardian, and determine the balance remaining in his hands: The surrogate's court may, by the decree made on such accounting, order the guardian to pay this balance to another guardian appointed in his stead, or to the ward, if he has attained his majority. Eor a neglect or refusal to comply with such decree, the guardian may be proceeded against in the surrogate’s court, by attachment against his person, as for a contempt. It is not requisite that the process of -commitment, issued by the surrogate in such a proceeding, should recite all the facts and proceedings necessary to confer jurisdiction. It is sufficient if upon its face it appears to have been issued in a proceeding of which the surrogate had jurisdiction, states in substance the cause of commitment, and specifies the act or duty to be performed, and the expenses to be paid. Appeal from a judgment of the supreme court, sitting in the second district. The complaint alleged that in June, 1848, at the city of New-York, the defendants wrongfully seized the plaintiff, and carried and conveyed him to the jail in the county of Orange, and there imprisoned him during a considerable space of time, and until he was discharged by an order of the supreme court. The defendants, Duryea, Booth and Welling, answered jointly, .and the defendant Mead separately. In each answer it was alleged, as one defense to the complaint, that the plaintiff, in 1834, was appointed by the surrogate of the county of Orange, guardian of the person and estate of Josiah Mead, one of the defendants, then an infant; that the plaintiff accepted the appointment, and while acting as guardian became possessed of money of the infant ; that in 1839, Mead have attained the age of fourteen years, one Ball was, by the surrogate of Orange county, appointed guardian of his person and estate, and assumed the duties of the appointment; that in 1844, on the petition of Ball as guardian, the plaintiff was cited to appear before the surrogate, to render an account as such guardian, and that the citation was personally served upon him; that due proceedings were had upon the petition, and on the 9th of July, 1844, the surrogate made and entered a decree in the matter, whereby it was, among other things, ordered and decred that the plaintiff, late general guardian of Josiah Mead, pay to Ball, then guardian of said Mead,-the sum of $427.87, within thirty days from service of a copy of the decree upon him, and that upon complying with the decree the plaintiff be discharged from liability as to the property which came to his hands as guardian, and that the account, as settled by the decree, be final and conclusive on all parties to the same; that a copy of the decree was served on the plaintiff, and payment of the amount therein specified demanded, and that he neglected and refused to pay over the same, or any part thereof; that after more than thirty days had elapsed from the service of a copy of the decree on the plaintiff, and on the •31st of May, 1848, the defendant Duryea, then the surrogate of the county of Orange, on proof of such service, demand and nonpayment, made an order in said matter, by which, after reciting the proceedings, it was ordered that an attachment issue out of and under the seal of the surrogate’s court against said plaintiff, to be directed to the sheriff of the city and county of IfewYork, and commanding him to arrest the plaintiff and bring him before the surrogate of the county of Orange, on the 26th day of June then next, to answer for his misconduct in not paying said sum of $427.37 and interest, pursuant to said decree, and that the plaintiff should give a bond for his appearance to answer on the attachment, in the penalty of $800. That thereupon, on the 31st of May, 1848, an attachment was issued by the surrogate against the plaintiff; it recited the decree, service of a copy of the same on the plaintiff, and a demand of the amount thereby required to be paid, and his neglect and refusal to pay the same, and commanded the sheriff to arrest and bring him before the surrogate, on the 26th of June then next, to answer for his misconduct in not paying the amount mentioned in the decree. That this attachment was delivered to the sheriff of the city and county of New-York, who arrested the plaintiff thereon, when he gave the bond required, to appear before the surrogate at the timé and place mentioned in the attachment. That the plaintiff appeared before the surrogate, pursuant to the command of the writ, whereupon interrogatories were filed and served upon him, specifying the misconduct complained of, to which he made answer's; and that such proceedings were thereupon had in the matter, that the surrogate, on the 26th of June, 1848, made an order, in and by which it was, among other things, ordered that the plaintiff pay to said Mead, who had then attained his majority, the said sum of $427.37 with interest, from the 29th of July, 1844, and that he be committed to the jail of the county of Orange, there to remain charged for said contempt until he paid such amount and sheriff’s fees, unless sooner discharged, and that a warrant so committing him issue to the sheriff. That in pursuance of such order, the surrogate, on the said 26th of June, issued under his hand and the seal of his court, a precept which was set out in the answer. The precept was directed to the sheriff of the county of Orange, and recited that by an order made in the surrogate’s court, on said 26th of June, in the matter of the final settlement office account of the plaintiff as guardian of the estate of Mead, it was ordered that the plaintiff pay to Mead, who was then of lawful age, the sum of $427.37, with interest from the 9th of July, 1844, and that he be committed to the jail of the county of Orange, there to remain charged with the contempt mentioned in said order until he should pay said sum and interest, and that a warrant issue for that purpose to the sheriff of the county of Orange; and commanded the sheriff to take the plaintiff, and him safely keep in Ms custody in the jail of said county, Until he should pay said sum and interest, with the sheriff’s fees, or until the surrogate’s court should make an order to the contrary, or the plaintiff be discharged.by dqe course of law. That this precept was deliyered to the defendant Welling, then sheriff of Orange county, and that under and by virtue of the same, the plaintiff was taken and confined in jail until discharged as alleged in the complaint; which were the same taking, detention, &c. complained of. To this defense the plaintiff demurred, on the ground that the same and the facts therein set forth did not constitute any defense in law to the complaint. At a special term of the supreme court, held by Mr. Justice Brown, judgment was rendered in favor of the defendants on the demurrer. (See 10 Barb. S. C. R. 523.) This judgment was affirmed at a general term, and the plaintiff appealed to this court. Moses Swezey, for the appellant. S. J. Wilkin, for the respondents Duryea, Welling and Booth. W. C. Hasbranck, for the respondent Mead. [MAJORITY — W. F. Allen, J.] W. F. Allen, J. By statute, authority is conferred upon surrogates to appoint guardians for minors, to remove them, and to direct and control their conduct and to settle their accounts as provided by law. (2 R. S. 220, § 1.) By other provisions of law, guardians may, upon the arrival of their wards at full age, or upon their removal or resignation of their trust, be cited and compelled to account before the surrogate by whom they have been appointed, in the same manner as administrators; and such accounting may be had as well at the instance of the guardian as of the ward, or any relative of the ward, or a new guardian who may have been appointed; and appeals may be taken from the final order of the surrogate in the settlement of a guardian’s account to the supreme court, as in the case of administrators. (2 R. S. 152, §§ 11,13. Laws of 1837, ch. 460, §« 50, -54.) It was the intent of the legislature, in conferring this jurisdiction upon surrogates, to provide an inexpensive and summary process for the settlement and adjustment of the accounts of guardians, and to supersede the necessity of a resort to the court of chancery for that purpose. In other words, for all the purposes of settling accounts between guardians and wards, and finally adjudicating thereon, the surrogate’s court was invested with all the jurisdiction which had before been exercised by the court of chancery, to be exercised, however, in the cases and in the manner prescribed by statute; and while surrogates’ courts can only exercise the jurisdiction expressly conferred upon them, the statutes being remedial and for the advancement of justice, should receive a favorable construction, and such as will give to them the force and efficiency intended by the legislature. (People v. Pelham, 14 Wend. 48.) If the powers of the surrogate should be restricted to requiring the guardian to render an account of his doings,- which may in a limited sense be held to be an accounting, or if it should be held that the surrogate is invested with power to examine the account rendered, allow and disallow items, and finally adjust and settle the same, and strike a-balance, without power to decree the payment of such balance, the remedy will come far short of that afforded by the court of chancery, and the legislature will have failed to provide the substitute they designed. The parties pursuing will be compelled to resort to another court by an independent action, to obtain the relief which before would have been had in one action. The chancellor, in Skidmore v. Davies, (10 Paige, 316,) says, it is a matter of course to require a guardian, upon his removal, to account and to pay over the balance, if any, which shall be found in his hands upon such accounting; and he is speaking of proceedings in surrogates’ courts. The accounting to which a guardian may be subjected, by proceedings before the surrogate, is not only a statement of his receipts and disbursements with the amount of the trust fund still remaining in his hands, but it is, in addition to such account stated, a rendering and giving up to the party «entitled of the moneys and property in respect to which the accounting party is liable. ' The payment is a part of the accounting. An officer or trustee could not be said to have accounted to his government, superior officer or cestui que trust, in respect to Ms office or trust, who should state a just account of the moneys in his hands, and which he ought to pay, but which he should nevertheless neglect or refuse to pay. The bond of a guardian is conditioned that he will in all things discharge the duty of a guardian to the minor, according to law, and that he 'will render a true and just account of all moneys and property received by him, and of the application thereof, and of his guardianship in all respects, to any court having cognizance thereof, when thereunto required. (2 R. iS. 151, § 8.) And it would hardly be claimed that the refusal to pay over an ascertained balance, would not be a breach of this condition. It was not necessary to provide in terms for a final decree, as was done in the case of administrators and executors in respect to creditors, legatees and distributees, for the reason, that none but the pursuing party would be entitled to any part of the moneys which might be found due from the accounting party; but if express authority to make a final decree should be necessary, the statute authorizing such decree in the case of administrators is by reference incorporated into, and made a part of the statute regulating the settlement of the accounts of guardians. The entire statute in respect to the settlement of the accounts of executors and administrators including the final decree is remedial, and so far as applicable regulates corresponding proceedings in behalf of or against guardians. The law of 1837, (ch. 460, § 63,) authorizing the docketing of any decree which may be made by a surrogate for the payment of money'by a guardian, and an execution to be issued thereon, is a strong expression of the legislative opinion of the power of the surrogate to make such decree, for it assumes that the power exists. The surrogate has authority to compel the guardian to account, wMch includes the payment of any sum which may be found in his hands, and necessarily implies power to make the necessary order or decree in the premises, and this aside from the general power to control and direct the conduct of guardians. The accounting is incomplete until payment of the money, and the whole is a “process” which may be enforced by attachment, to be issued by the surrogate under 2 R. 8. 221, § 6. I cannot doubt that the final order or decree of the surrogate upon an accounting, from which an appeal may be "taken, is a decree striking the balance and directing the payment of any amount found to be in the hands of the guardian, and for non-compliance with which an attachment may be issued. Trust moneys and property being kept entirely separate from the individual money and property of the guardian, and ready to be delivered at any time, it was fit and proper, that disobedience of an order of a court of competent jurisdiction requiring this, should be' treated as a contempt, and punished as such. In contemplation of law, the trust fund at all times remains in specie or invested as required by law, and the money or the proper securities are or should be in a situation to be delivered over at once; and hence an order or decree directing this to be done, is not like an ordinary judgment for a given amount, in an action at law, which can properly be enforced only by the ordinary process of execution. The attachment in this case is a substantial compliance with the statute. It is in form similar to that used by the court of chancery in analagous cases. (2 R.' 8. 221, § 6.) It specifies the act or duty to be performed and the expenses to be paid. (2 R. 8. 538, § 24.)' It was issued in a matter and recited proceedings over which the surrogate had jurisdiction, and it is not necessary that the process should recite all the proceedings. The cause is substantially stated, which is sufficient. (People v. Nevins, 1 Hill, 154.) If there was a jurisdictional defect in the proceedings, it should be shown by the party complaining of them.. The process, upon its face setting out a substantial cause of commitment in a matter or proceeding of which the surrogate had jurisdiction, -was prima facie a protection to- all concerned in the arrest. ' The judgment of the supreme court must be affirmed, with costs. Denio, Johnson, Parker, Edwards and Selden, Js., concurred in the foregoing opinion. Gardiner, 0. J., delivered an opinion in favor of reversing the judgment of the supreme court, and rendering judgment for plaintiff on the demurrers. Rüggles, J., did not hear the argument, and took no part in the decision. Judgment affirmed.