The order and judgment should, therefore, be reversed, with costs, and the motion denied, with ten dollars costs.

INGRAHAM, P. J., LAUGHLIN, CLARKE and SCOTT, JJ., con

curred.

LAUGHLIN, J. (concurring). I concur in the views expressed by Mr. Justice SMITH, and vote for reversal. I am of opinion that the provisions of the will directing that the residuary estate be divided into as many shares or portions as the testator left children him surviving is qualified by the further provisions with respect to the prior death of a child leaving issue, and that the true construction of the will is that if the testator left children and the issue of a deceased child, no matter whether the death of such child occurred before or after the making of the will, the residuary estate should be divided into a number of shares equal to the number of sons and daughters of the testator who survived him, plus the number of his sons and daughters who pre-deceased him, leaving issue surviving the testator.

The plaintiff and the defendant Rosemary Kane, who are the children of the testatrix's son Michael, are, therefore, entitled to take the share which Michael would have taken had he survived the testatrix.

INGRAHAM, P. J., CLARKE, SCOTT and SMITH, JJ., concurred.

Judgment reversed, with costs, and motion denied, with ten dollars costs.

LEON MITCHELL, Appellant, v. MICHAEL MITCHELL, Individu ally and as Guardian of LEON MITCHELL, Respondent.

(Supreme Court, Appellate Division, First Dept., December 10, 1915.)

GUARDIAN AND WARD-SUIT AGAINST GUARDIAN FOR ACCOUNTING-RELEASE OF CLAIMS CONSTRUED-LIMITATION OF ACTION AGAINST TRUSTEE.

Action against a guardian brought by his ward to compel him to account for a legacy which he had received as guardian and for which he had failed to account. The defendant, father of the plaintiff, who had been associated with him and another son in business, set up as a defense a general release of all claims against him executed by the sons. Release construed, and held, to refer only to claims relating to business transactions between the parties and not to release the claim against the father as guardian.

The general rule is that where a release contains a recital of a particular claim, obligation or controversy, and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby.

As the defendant was the guardian of an express trust, the Statute of Limitations did not begin to run against the claim of the ward until the guardian had accounted or repudiated the trust.

APPEAL by the plaintiff, Leon Mitchell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of March, 1915, dismissing the complaint on the merits upon the decision of the court after a trial at the New York Special Term.

Harold Nathan, for the appellant.

Frederick L. Guggenheimer (Otto Horwitz with him on the bricf), for the respondent.

LAUGHLIN, J.- On or about the 7th day of April, 1898, when the plaintiff was a minor of the age of about fifteen years, letters of guardianship were duly issued by the Probate Court

of the county of Suffolk, Mass., appointing the defendant, who is his father, his guardian, with authority to receive and take possession of all his property, and on the next day the defendant as such guardian received from the executors of the will of one Foss the sum of $500, bequeathed to the plaintiff.

The plaintiff alleges that the defendant brought the money so received by him as guardian for the plaintiff into the State of New York, where both parties now reside, and has never accounted therefor, although an accounting was duly demanded by plaintiff after he attained his majority and prior to the commencement of the action, which was brought for an accounting on the 7th day of August, 1914. The defendant admitted his appointment as guardian as alleged and the receipt of the money and that he had not accounted, and pleaded the six-year Statute of Limitations and a release of the cause of action. The defendant was likewise at the time appointed guardian of his son Bertram, who was about five years younger than the plaintiff, and he received a like amount for Bertram, for an accounting for which another action has been brought and the appeal has been argued and is to be decided herewith (170 App. Div. 458).

The two sons resided with their father until the death of their mother in November, 1913. The defendant testified that his son Bertram was employed by him on a salary in the woolen rag business, and that after the death of his wife a controversy arose which resulted in litigation between him and his son, but he did not specify which son, and that the litigation was settled by the execution of a release under seal on the 6th day of January, 1914, and the learned trial court found that it released the defendant from accounting as guardian.

The release is in the form of an agreement between Leon Mitchell as party of the first part, Bertram Mitchell as party of the second part, and Michael Mitchell as party of the third part. It contains preambles reciting that a business was being con

ducted at the city of New York under the name " M. Mitchell," which the party of the third part claimed to belong to him exclusively and the party of the first part claimed an interest therein; that a dispute had arisen between the parties of the first and third parts as to the ownership of the business and that the parties had agreed to settle and adjust their said disputes. It was provided that the agreement witnesseth that the party of the third part agreed to pay the party of the first part $8,800 in the manner and at the times therein stated, and that the party of the first part in consideration thereof agreed to receive said payment in full settlement, satisfaction and accord. The next paragraph of the agreement provided as follows:

"In consideration of the foregoing, the said party of the first part hereby agrees to receive the foregoing in full settlement, satisfaction and accord of any and all claims and demands of every nature and description whatsoever which the party of the first part now has or heretofore has had against the party of the third part, as well as any and all claims whatsoever to the said business conducted in the name of M. Mitchell;' and in consideration of the foregoing, the said party of the first part hereby sells, assigns, transfers and sets over unto the party of the third part all his right, title and interest in and to any and all of the merchandise, outstandings, cash in bank and otherwise, as well as in and to all other assets of every kind, nature and description to said business in any wise belonging or appertaining."

It was then provided in the agreement that the party of the first part should deliver to the party of the third part certain specified books and papers and all other books and papers and property belonging or relating to said business and containing a covenant on the part of the party of the first part with respect to the amount of money he had withdrawn, collected or received in the business, and with respect to the debts contracted therefor

by him. Then followed the final paragraphs of the release preceding the witness clause, as follows:

"And the said parties of the first and second part, in consideration of the foregoing, and of the sum of One Dollar to them in hand paid by the party of the third part, receipt whereof is hereby acknowledged, do each hereby discharge and release the said party of the third part of, from and against any and all claims and demands of every nature and description, whether due or to grow due, which against the said party of the third part the parties of the first and second part may now have, since the beginning of the world to the date of these presents, other than those which may arise from or under the terms of this agreement. And in consideration of the foregoing, the said party of the third part hereby agrees to assume and discharge all the debts and liabilities incurred in connection. with the said business of M. Mitchell, and to hold the said party of the first part free and harmless therefrom; and in consideration of the foregoing, the said party of the third part does hereby discharge and release the parties of the first and second part, and each of them, of, from and against any and all claims and demands of every nature and description, whether due or to grow due, which against the said parties of the first and second part, or either of them, the party of the third part may now have, since the beginning of the world to the date of these presents, other than those which may arise from or under the terms of this agreement."

The learned trial court construed this agreement as in effect constituting two releases, one a particular release with respect to the business, executed between the plaintiff and his father, and the other a general release by the two sons to their father, and, therefore, held that the general provisions are not limited. by the particular provision relating to the settlement of the controversy with respect to the business. I am unable to agree with this construction of the instrument. All of the provisions