Graff

A settlement of the account by the Probate Court, and an order to pay the amount found due, is necessary in order to maintain a suit against the sureties. ( Stilwell v. Mill, 19 Johns. 303 ; Salisbury v. Van Holsen, 3 Hill, 77 .)

*637 Glassell, Chapman, and Smiths, for the Respondent.

The account filed by Temple was sufficient to enable us to maintain this action. (Brown v. Snell, 57 N. Y. 297 .)

There has been a breach of the bond. (1 Williams on Executors, p. 446.)

Under secs. 1629 and 1789 of the Code of Civil Procedure, the guardian, notwithstanding the revocation of his letters, might have been cited by the Probate Court to render his final account, the settlement of which by the Court would have conclusively established the amount due to the ward, even as' against the sureties in the official bond of the guardian. If, on being cited for that purpose, the late guardian had refused or neglected to render the account, he might have been compelled by attachment to do so ; or if, for any reason, that remedy was unavailing, the Court might have caused the account to be made up, audited, and settled upon such evidence as should be adduced on behalf of the ward. It appears from…