2 Edw. Ch. 202 | New York Court of Chancery | 1834
The codicil in this case is clear a.nd explicit; and there can be no doubt of the right of the children of Susan to an immediate payment of their legacies. But, I consider there are objections to a suit of this nature. The bill is filed by the father of the legatees as their general guardian, appointed by the Surrogate. This gives him no authority to come into this court. A suit for the benefit of infants should be filed by a prochein amy; and, since the Revised Statutes, no one else can do it. I hold the statutes to be imperative on this head.
Again: there was no occasion to bring such a bill in this court. The Surrogate has power, under the Revised Statutes, to compel the payment of legacies. The course is expressly laid down in the Statutes. There is, consequently, no necessity for such a bill. I do not mean to say this court has no jurisdiction. But the father ought to go into the Surrogate’s Office, where legacies can be ordered to be paid to a general guardian; whereas, here, they cannot : unless security be given and the general guardian be thereby turned into a special one. This has been decided by Chancellor Kent: Genet v. Tallmadge, 1 J. C. R. 561.
There is one circumstance, however, which might possibly have led the party to the course here pursued. I refer to the testator’s appointment of the executors and executrix as testamentary guardians of the infants who are legatees. It has been decided, and the principle is no doubt so, that a testamentary guardian can only be appointed by a father. The grand-father, in the present case, had no such power: Fullerton v. Jackson, 5. J. C. R. 278.
My. Graham. There was no idea of requiring costs on either side. Will the court allow the father to give security at this time, as special guardian?
The Vice-Chancellor. Such a question must come before me through a regular petition. I cannot pass upon it at this time and in this way.
