In re Dyer

5 Paige Ch. 534 | New York Court of Chancery | 1836

The Chancellor.

The surrogate had no jurisdiction or authority, in this case, to appoint a new guardian in the place of the one appointed by the court of chancery. And the appointment of such new guardian, and the taking of the account of the old guardian, by the surrogate, were both unauthorized and void. In the case of Nicoll, an infant, (1 John. Ch. Rep. 25,) Chancellor-Kent decided that a guardian, appointed by the court of chancery, for an infant under the age of fourteen, continued until the infant arrived at twenty-one, unless such guardian was removed by this court upon good cause shown; and that the infant could not have a new guardian appointed, as of course, on his arriving at the age of fourteen. This court may remove a guardian appointed by a surrogate, for good cause shown. It has, in this respect, concurrent .jurisdiction with the surrogate, since the revised statutes have given jurisdiction to the surrogate to remove a guardian appointed by himself, on proof of the incompetency. or misconduct of the guardian. But the surrogate has not concurrent jurisdiction with the chancellor, to remove or change a guardian appointed by the court of chancery, or to compel such a guardian to account, either before or after such removal. The guardian appointed by the surrogate only continues until the infant arrives at the age of fourteen, and until another guardian is legally appointed; and if a guardian so appointed is superseded by the appointment of a new guardian, or is removed by the surrogate appointing him, for incompetency or misconduct, such surrogate has jurisdiction to campe¡ t])e guardian to account, concurrent with the court of chancery. But the surrogate has no authority to call any guardian to account, or to discharge or remove a guardian, except in the particular cases specified in the statute ; or even to accept the resignation of a guardian appointed by himself and to appoint another in his place—the surrogates, in this respect, taking no incidental power or constructive authority, by implication, which is not expressly given by statute. (Matter of Andrews, 1 John. Ch. R. 99. 2 R. S. 220, § 1.) If a guar- - dian appointed by this court has wasted the estate of his ward, or has become incompetent or irresponsible, an application must be made here to remove him, and to compel him or his sureties to account. Until he is so removed, no new guardian can be appointed in his place. The mortgage which this guardian has given cannot therefore be discharged upon this application.

Petition dismissed.