In re Buckler

89 N.Y.S. 206 | N.Y. App. Div. | 1904

Hatch, J.:

On the 6th day of February, 1904, Marion Buckler presented a petition to the Surrogate’s Court of the county of New York, asking for the appointment of the Knickerbocker Trust Company as guardian of the estate of Philip Stevenson, a minor, who would be thirteen years of age upon the 31st day of March, 1904. The petition, among other things, showed that the said infant was possessed of considerable property; that his father and mother were both dead ; that the petitioner was a sister of said infant, but that she resided without the State of New York. The petition also contained the names of all the brothers and sisters of said infant, and a citation was accordingly issued, directed to all persons who had a prior right to such appointment. Before the return day of the. citation, and upon the 20th day of February, 1904, Elizabeth Stevenson presented a petition to said Surrogate’s Court, asking that she. be appointed guardian of the person and property of said Philip Stevenson. This petition showed that the petitioner was of the age of twenty-three years, and was a sister of the infant, and that he had resided with petitioner since the death of his mother, a year prior thereto. Attached to the second petition were written consents of all persons equally entitled with the petitioner to letters of guardianship, consenting to the appointment of the petitioner.

The .question as to whether the sister Elizabeth or the trust company should be appointed was determined by affidavits which were read before the surrogate, no further proof being offered. Mrs. Buckler sought to show by the affidavits of herself and other persons that the sister Elizabeth was not a proper person for guardian,, as she was inexperienced and that her chief adviser was one of the executors and trustees of her father’s will; that she believed in his integrity and business capacity, while in fact he had grossly mismanaged the estate committed to his care and had appropriated valuable -property to his own use, which charge in the affidavit presented by Mrs. Buckler was specified in considerable detail. The-, sister Elizabeth sought to show by practically all the other members of the family and many other persons, that she was entirely competent to manage the estate and person of her infant brother; that her sister Marion was at variance with all the other members of the. family and that their relatione were inharmonious. She also presented an affidavit made by the infant requesting that Elizabeth be appointed.

- The surrogate, after a full hearing, reached the conclusion that the best interests of the property of the infant required the appointment of the trust company as guardian of the property and appointed Elizabeth the guardian of the person. The appellant appealed from that part of the order which appointed the Knickerbocker Trust Company guardian of the property. It is conceded by the appellant that the Surrogate’s Court is vested with discretionary power to appoint a stranger, but she claims that such power will not be exercised where, other things being equal, a relative of the minor 'is in existence, who may be appointed and who is competent for the purpose. This, doubtless, states the correct rule of law. In the present case, however, we think the discretion of the surrogate was-wisely exercised. The estate of the infant is large; the parties, interested therein are to some extent at variance in regard to the management of the property which passed under the wills of David Stevenson and his wife, Sewanne Stevenson, and in which the infant has an interest. It is not necessary that we consider the merits of the charges brought against the trustees. Mrs. Buckler claims that they exist in fact; that the sister Elizabeth supports their management and is in harmony therewith, and it is fair te assume that she will be influenced to some extent by their advice as to the management of the property of the ward should she be appointed. The appointment of the Knickerbocker Trust Company secures the safe administration of the estate of the infant and securely protects his interest in that regard, while the custody of his person by his sister Elizabeth insures his personal welfare. Under such circumstances we are of opinion that the discretion of the surrogate was wisely exercised, and we find no ground which would justify our interference in the result reached by him.

It follows that the decree of the surrogate should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Decree affirmed, with ten dollars costs and disbursements.