Bennett v. Byrne

2 Barb. Ch. 216 | New York Court of Chancery | 1847

The Chancellor.

It was improper to approve of the bond, of the sureties, without requiring them to justify. The return of the surrogate that he knew the sureties to be responsible, amounts to nothing. For I cannot infer, from that; that he means to return under his oath of office that he knew they were worth §7000 over and above all debts and responsibilities. The proper course for the surrogáte, upon the appointment of a guardian, is to ascertain, by the examination of witnesses, the probable amount of the personal estate,, and of the income of the realty during the minority of the infant. And when he has done that, he should direct the guardian to- give a bond, with sureties, in double that amount; and should require the sureties to justify in at least the amount of the penalty of such bond. In this case there does not appear, by the return, to have been any evidence as to the value of the personal estate, or of the income of the real estate, which came to the infant from his father. The half of the residuary estate of the father, which was bequeathed to the infant by his mother, being by her will placed in the hands of her executor and trustee, could not come to the possession of the guardian, and therefore need not have been included in the bond. But the value of the other personal estate of the infant, with the interest thereof during his minority, and the probable value of the income of his real estate, during the same period, should have been ascertained by the examination of those who were acquainted with the situation and value of the property. And the penalty of the bond, and the justification of the sureties in such bond, should have been regulated accordingly.

The surrogate also erred, in this case, in refusing to appoint the appellant the guardian of the infant, and in committing the guardianship to the grandmother. There are several considerations which should have induced the appointment of the matern al grandfather. In making such an appointment, the true inlerest of the minor should be consulted, rather than the interests or the wishes of those who are contending for the guardianship. Here the appellant was already the trustee of the infant, to expend the income of the mother’s estate in his support and education. And the appointment of any other person as guardian might subject the infant to the expense of separate accounts of the expenditures for his support; the one on the part of the executor and trustee of the mother, who was charged with the support and education of the infant out of the income of the property bequeathed by her, and the other by the guardian of the estate which came to the infant directly from his father. It would also be likely to lead to collisions between the executor and the guardian, as to what expenditures were necessary and proper for the infant, and as to the manner in which he should be brought up and educated. For each would have a discretion to exercise, upon the subject of necessary ex penditures for those purposes.

Again; the strongly expressed wish of the mother, upon her death-bed, that the appellant should adopt her orphan child, then about twelve weeks old, and bring it up as his own, and should' see that its property was not wasted, was a circumstance which ought to have had a preponderating, influence in favor of the appointment of the appellant; other things being equal. The fact that Mrs. Byrne was far advanced in years, was not of itself conclusive against her. For it appeared that she had two maiden daughters, living with her, who could see that the infant was properly cared for. But the probability that if she was appointed the infant’s estate would be subjected to the expense of a new appointment within a very few years, and to other incidental expenses necessarily attending a change of guardianship, was a circumstance which was entitled to some weight in favor of the appellant. The fact that George Byrne had four young children who would require the whole attention of his wife, rendered it pretty certain that the infant would be better provided for in the family of the grandmother, or of the maternal grandfather, than in the family of that uncle. Although the present wife of the appellant was not the grandmother of the child, she was not a stranger to it in blood. And the fact that she had resided in the family of her present husband during her sister’s life, and that the mother of the infant had been brought up under her care, rendered it highly proba ble that she would feel a strong affection for the orphan child of her deceased niece ; especially as she had no children of hex own to draw off her affections from it. I have no doubt, thereifore, that the child would be as well attended to in the family of the appellant as it would be in that of its maternal grandmother, in her straitened circumstances, if not better.

The surrogate therefore should have granted the application of the appellant, and thus left the child where it had been placed by the request of its dying mother. The orders appealed from must, be reversed; and the proceedings must be remitted to the surrogate, with directions to him to appoint the appellant the guardian, of the person and estate of the infant, upon his giving a bond in the usual form, in a penalty of at least double the value of the personal estate of the infant, other than that which came from the mother, including interest thereon during the infant’s minority, and the probable income of the real estate during the same period; with two sufficient sureties who can justify in the amount of thp penalty of the bond.

The costs of the guardian ad litem of the infant, and the costs of the appellant, upon this appeal and in the proceedings before the surrogate, are to be paid out of the personal estate of the infant which shall come into the appellant’s hands as guardian.

And, it being suggested that one of the parties to this appeal has died, since the argument here, the decree to be entered upon this decision is to be entered nunc pro tunc, as of the time when the appeal was heard.