57 N.Y.S. 390 | N.Y. App. Div. | 1899
Benjamin L. Brigg, of the city of ¡New York, made his will in the year 1889, by which, after giving a few legacies which are not material here, he devised all the rest and residue- of his estate, real and personal, to his executors in trust, to receive the rents, issue, income and profits thereof and pay them to his wife during her life, and to pay to his sons, when they respectively should arrive at the age of thirty-five years, out of the principal of the estate, such sum or sums as his wife should approve of. The will further provided
The will contained a further provision with regard to the payment of the remainder of the principal to the sons, which it is not necessary to consider.
The testator further provided that should his wife, Abbie Olivia Brigg, he deceased at the time of his death, he nominated Kate M. Jenkins and Henry Bischoff, Jr., to be guardians of the persons of such children as should not then have attained lawful age. By another clause of his will he nominated and appointed the same persons guardians of the estate of his children surviving him who should not, at the time of his death, have attained lawful age ; and he directed that each of the guardians aforesaid should receive for such services as lie might be required to render the sum of §500, such sum to be paid them by the executors or their successors.
Hpon this accounting, the two persons named as guardians insisted that the sum of §500 should be paid to each of them pursuant to the provisions of the will. This was refused by the surrogate, and from so much of the decree as refuses to pay them such sum the appeal is taken.
The testator died on the 15tli day of March, 1893. As the law stood on that day, he had authority to appoint by his will the persons who should have the care, custody and tuition of his children, but he did not attempt to execute this power unconditionally, but, In case his wife should not be living at his death, he nominates Kate M. Jenkins and Henry Bischoff, Jr., to be guardians of the person of such of his children surviving him as should not then have attained lawful age. As Mrs. Brigg survived the testator, the appointment of guardian of the person of his son did not take effect, and his wife, the mother of the son, became his guardian. As such, she was expressly authorized, as guardian of the person of the child, to take the custody and management of his personal estate and the profits of his real estate during the time of his guardianship, and to bring such actions in relation thereto as a guardian in socage might
So much of the decree of the surrogate as is appealed from must, therefore, be affirmed, with costs to be paid by the appellants.
Van Blunt, P. J., Barrett, Patterson and McLaughlin, JJ., concurred.
Decree affirmed, with costs to be paid by the appellants.