1 Johns. Ch. 3 | New York Court of Chancery | 1814
There is one objection to the demand of the petitioner, which must prevail. The statute of sess. 36. c. 75., (1 N. R. L. p. 314.,) declares that every .person entitled to any legacy • or distributive share, shall, at the time of payment or delivery, give bond in double the sum demanded, with two sufficient sureties, to the executor or administrator, to refund, &c. if assets should fail for the payment of debts, &c. No such bond is tendered, and the application, on that ground, must fail.
But if this objection be removed, (as it probably may,) the petitioner, in his character of guardian, is entitled to
In all these cases, the question seems to have been, whether a legacy to a minor could safely be paid to the father, zs father, or natural guardian merely, and it does not appear to be any where denied, that a guardian, duly appointed by the competent authority, was authorized to receive legacies and distributive shares belonging to his ward. On this point, I- do not see that any doubt can arise. The statute of this state, to which I have already referred, contemplates a recovery at law, by the guardian, of legacies and distributive shares, on giving approved security to account to the infant on his coming of age. A guardian is, by the general nature of his trust, entitled to the possession and care of the personal, and of the rents and profits of the real estate of the infant; and I do not feel myself at liberty to deny to the guardian, on any terms whatever, the possession of this distributive share.
But it appears that the security given by the petitioner, when appointed guardian, is not quite adequate ; and, though his claim may be imposing, when we consider that he unites the characters of natural and of legal guardian, yet I think the security must be increased to, at least, 10,000 dollars more, before the petition can be granted.
Let it therefore be referred to a master, to ascertain and report proper and competent security to the administrator,