In re the Appeal of United States Fidelity & Guaranty Co.

The opinion of the court was delivered by .

Parker, J.

The decree in the prerogative court simply affirmed a decree in the orphans court of Essex county, and we' turn to that for an ascertainment of the judicial action whereby appellants claim to have been aggrieved; which was, in short, that that court allowed a former decree which, as appellants claim, settled finally the accounts of Miss Vanderbilt’s father as guardian of her estate, to be opened to the end that she be permitted to file exceptions to that account. The particular exceptions proposed are based on the alleged negligence of her father in holding certain securities on- a falling market, as in Beam v. Paterson Safe Deposit Co., 81 N. J. Eq. 195; S. C., 32 N. J. Eq. 518; 83 N. *255 J. Eq. 628; and it is claimed that the decree on accounting añade October 22d, 1915, adjudicated the propriety of his action, and was acted oai so that the later decree, made June 30th, 1916, and purporting to open it for exceptions, inequitably prejudiced a party who had acted in good faith in reliance on it.

Some examination of the facts is necessary. The property in question was bequeathed to Miss Vanderbilt by the will of her mother. Her father was appointed by the court guardiaaa of her estate in 1908 and received as guardian from himself as his wife's executor the securities in specie. The appealing guaranty company was his surety. He died December 31st, 1914, still in possession of these securities, and without having filed any accoaant of his guardianship, so far as appears. He seeiars to have left aao will. One William S. Woodhull was appointed his admiaaistrator, and pursuant to section 118 of the Orphans Court act (Comp. Stat. p. 3854) filed an account of this trust. We anay assuane for present purposes, without deciding, that this adequately claiancd allowaaice for transfer of the securities to a aaew guardian at the saane price as that at which they were taken. The qraestion, then, is whether the court sustained that claim and discharged the trust, aiad especially the estate of the father as guardian, froan all liability by reason of shrinkage; and if so, whether this was final. That the court had jurisdiction to do this is quite evident. Section 118 provides that whore a * * * guardiaaa * * * shall die without having fully settled up and obtained aaa allowance of his account of the administration of the estate that has come ioato his hands, it shall be lawful for the * * * administrator of such deceased " * * guardiaaa * * * to exhibit to the surrogate * * inorder to have the saane duly settled or allowed, aaa account * * * of the estate,” &c., and the orphans court is authorized and required to take cognizance of the said accounts and to proceed and act therein as is required iaa regard to accounts in other cases. And by section -127 of the same act, the decree of the orphans court on the final settlemeaat aaad allowance of the accounts of guardians, &c., shall be conclusive, and discharge such accountants of all claims beyond the balance found, except iaa cases where fraud or mistake is proved.

*256 We assume, as has been said, that the account was filed and intended as a final account pursuant to this legislation and claimed exoneration for the value of the stocks as charged on the other side. But an examination of what is claimed to be the “final” decree on this account discloses a different state of affairs. The account alleged, and the decree recites, that the stock certificates are in the possession of the surety, appellant. It then decrees that the account “is in all things allowed as stated, in so far as the said account relates to the acts of said William S. Woodhull, as administrator of DeWitt C. Vanderbilt, in his relation as guardian for Mabel Vanderbilt;” charges the' estate of DeWitt C. Vanderbilt $632.8-1- reported short by the administrator; repeats the declaration that the stock and some savings bank books not now in question are in the hands of the surety; directs that they be turned over to Fidelity Trust Company as substituted guardian of Mabel; and then adds this significant clause: “And it is further ordered that the Fidelity Trust Company, substituted guardian of said Mabel Vanderbilt, and the.said Mabel Vanderbilt have leave to take such proceedings against the estate of said DeWitt C. Vanderbilt, or against the United States Fidelity and Guaranty Company, bondsman of the said DeWitt C. Vanderbilt as aforesaid, as it or she may be advised.”

This was on October 22d, 1915. Mabel had then been of age about two months. Her petition for leave to except to the account on the grounds aforesaid is dated May 25th, 1916. The court granted that leave; and its order to that effect is the matter of appeal.

We have difficulty in seeing why any such order was needed at all. If the administrator in fact asked a final discharge not only of himself but of the estate, he represented, he did not obtain it. The allowance of his account was expressly limited to his own acts as administrator of DeWitt C. Va'nderbilt, and did not extend to acts of the latter, as to which the. record shows no adjudication whatever. As to these, therefore, it is still entirely open. Normally, of course, exceptions should be filed not later than the date advertised or cited for settlement; but we have no doubt of the discretionary power of the court to permit be *257 lated exceptions before the account is actually passed. If so, it was clearly within its power in permitting the exceptions in this case, and tlie very language of the original decree put appellant upon notice that it did not adjudicate on anything but the acts of Woodhull himself and what should be done with the property in hand.

If any confirmation of this view were needed, it is supplied by the further clause of the decree quoted above, expressly reserving the right of Mabel or her new guardian to take appropriate proceedings against the estate of her father, or against his surety. This must have some meaning; and what meaning, is more likely or obvious than that indicated by the restriction of the discharge to' the acts of,Woodhull; in short, that the court was satisfied with his conduct, but did not think it proper to conclude the ward as to the acts of,the guardian by deciding that his handling of the securities was a matter for judicial approval and discharge.

We conclude, then, that the decree in question was no adjudication on the conduct of DeWitt O. Vanderbilt as guardian; and that it expressly reserved the right of the ward to attack the propriety of such conduct. Consequently, there could be no estoppel, except, perhaps, by laches, which does not appear in the case.

We see nothing in the claim that these stocks were bequeathed in specie by the mother’s will. The bequest was of “one-half of the balance of moneys, bonds and investment that I may die possessed of.” There is a similar bequest, to a son. of the other half. A bequest of all testator’s property of a certain kind is general. 18 Encycl. L. (2d ed.) 712, and cases cited. The rule is the same as to a certain proportion of such property, as half to one and half to another. Ib. Even if there be a bequest of a specified number of shares of a particular stock, this is held general unless other language of .the will shows an intent to make it specific. Blair v. Scribner, 67 N. J. Eq. 583. And this intent should clearly appear. Mecum v. Stoughton, 81 N. J. Eq. 319.

The decree of the prerogative court affirming that of the orphans court is in turn affirmed.

*258 For affirmance — Ti-ie Outer-Justice, Sivayze, Trench ard, Parker, Minturn, Kallscii, Black, White, Herreniteimer, Williams, Taylor, Gardner — 12.

For reversal — Bergen—1. .