In re Helen W.

12 Mills Surr. 556 | N.Y. Sur. Ct. | 1914

Schulz, S.

The will of the decedent was executed on the 22d day of September, 1914, at which time chapter 18 of the Code of Civil Procedure, as revised by Laws of 1914, chapter 443, was in effect. So far as material to the question at issue the will provides: “ I hereby appoint Elizabeth Ward ® ® ® guardian of Helen W. and Robert T. Huebsch.” The decedent, .being the surviving parent of the minors, could nominate a guardian by his will. Dom. Rel. Law, being Laws of 1909, 'chap. 19, constituting Consol. Laws, chap. 14, § 81. The amount of the estate of each minor is stated to be less than $600. Guardians by will are now required to give bonds as a necessary incident to their qualification. Section 2658 of the Code of Civil Procedure, so far as material, provides: “ Where a will, containing the appointment of a guardian, is admitted to probate, ® * * the person appointed guardain must ® * * qualify by taking and filing his oath of office, and a bond as fixed by the surrogate, unless contrary to the express provision of the will or deed.” The will in question contains no express provision contrary to this requirement, and it would seem that the petitioner must give a bond before letters can be issued to her, unless relieved by some other provision of law. Whether there is such a provision is the question now before me for consideration and determination. Section 2650 of the Code, so far as material, provides: “ Before letters of guardianship of an infant’s property are issued by the Surrogate’s Court the person appointed must, except where the infant’s property does not exceed the sum of $2,000, execute to the infant and file in the surrogate’s office his bond ® ® *. But in counties containing a city of the first or second class, or a part of such city, where the property of the infant does not exceed the sum of $2,000, the surrogate, before the issue of letters of guardianship of the infant’s property, shall make an order directing that the guardian collect and receive the moneys and property of his ward jointly with a person designated in the order, and that all such moneys and other property, so far as the same are conveniently capable of deposit, shall be deposited in the name of such guardian, subject to the order of the surrogate, with such savings bank or deposit company as shall be in like manner designated * * It will be noted that ■ this section makes no distinction between general guardians, and guardians appointed by will, but uses the general term “ guardian.” This term, as used in chapter 18 of the Code, is defined by the Code, section 2642, which, so far as material, is as follows: “ A general guardian * * *. A guardian by will is one appointed by the will of a father or mother in accordance with the provisions of the Domestic Relations Law and of section 1745 of the Code of Civil Procedure, who has duly qualified pursuant to the provisions of this article. A guardian by deed * * ®. The term guardian ’ as used in this chapter applies to all such guardians, except ancillary guardians.” I think it follows as a necessary conclusion that the provisions of section 2650 of the Code of Civil Procedure are applicable to guardians appointed by wills, and I so hold. I do not believe that section 2658 of the Code makes the filing of a bond a prerequisite to the issuance of letters in all cases. This section and section 2650 must be read together, and I think when so read a reasonable construction is in harmony with the conclusion that I have reached. Letters will issue to the petitioner on these two applications without requiring her to file bonds, upon her complying with the remaining provisions: of section 2658 of the Code, such letters to contain the substance of an order to be made before the issue of the same, providing for the deposit of the moneys and the control thereof as set forth in section 2650 of the Code of Civil Procedure.

Decreed accordingly.