28 N.Y.S. 350 | N.Y. Sup. Ct. | 1894
The power to appoint a testamentary guardian is statutory, and was first given by 12 Car. II. c. 24, § 8. In Ex parte Earl of Ilchester, 7 Ves. 370, Lord Alvanley said:
“It is clear, by the common law, a man could not by any testamentary disposition affect either his land or the guardianship of his children. The latter appears never to have been made the subject of testamentary disposition till the statute 12 Car. II.”
7 Pick. St. p. 474 ; 2 Kent, Comm. 225; 2 Steph. Comm. (8th Ed.) 310; 1 Bl. Comm. 462.
Hence such guardians are called in the books “guardians by statute” or “statutory guardians.” Section 8 of 12 Car. II. c. 24, was enacted in this state March 3, 1787 (Laws 1787, c. 47, § 11; 2 Jones & V. 96; 2 Repub. Laws N. Y. p. 448). This provision was re-enacted February 20, 1801 (1 Rev. Laws 1802, p. 181, § 18), and again March 5, 1813 (1 Rev. Laws 1813, p. 368, § 18), and was incorporated in the Revised Statutes (2 Rev. St. 150). From time to time the Revised Statutes relating to this subject have been amended so that before the passage of chapter 175, Laws 1893 (which is an amendment of the Revised Statutes), it was provided that the father,, during the lifetime of the mother, might appoint a testamentary guardian of unmarried minors, and that the mother, surviving the-father, might also appoint one for her unmarried minor children. 4 Rev. St. (Banks’ 8th Ed.) p. 2612, c. 454, Laws 1888. By the Revised Statutes, as amended in 1893, the father and the mother are declared to be the joint guardians of their minor children. The-
VAN BRUNT, P. J., concurs in result. PARKER, J., concurs.