In re the Guardianship of Boock

246 A.D. 618 | N.Y. App. Div. | 1935

Decree of the Surrogate’s Court of Queens county denying the petition of Hilda Boock for appointment as testamentary guardian of her infant son, Harry Boock, during his minority, pursuant to such appointment made by paragraph sixth of the last will and testament of Ferdinand Reineking, deceased, reversed upon the law and the facts, with costs to appellant, payable out of the estate, the petition granted and the surrogate directed to issue letters of guardianship accordingly. The petitioner, Hilda Boock, was named in the last will and testament of Ferdinand Reineking, deceased, as the testamentary guardian of her illegitimate infant son, Harry Boock. She alleges that the deceased was the father of the child. Her application for appointment as such testamentary guardian was denied by the surrogate upon the ground that the testator had no right, under section 81 of the Domestic Relations Law, to appoint her as such guardian. We do not construe said section to be limited in its effect to legitimate children. Young, Seudder and Tompkins, JJ., concur; Carswell, J., concurs on the ground that the mother is entitled as natural guardian to appointment as testamentary guardian; Lazansky, P. J., concurs with Carswell, J.