110 A.D. 472 | N.Y. App. Div. | 1906
Edwin L. Burdick of the city of Buffalo died leaving him surviving his widow and their three minor children. He left a will by _ which, after a few general legacies, he gave, by the 3d paragraph,
The mother, of the children has been appointed their general guardian by the Surrogate’s Court of Erie' county, having given a satisfactory bond in the penalty of $60,000 for the discharge of her duties as such guardian. Upon the judicial settlement of the account of the said executors, the general guardian claimed that the 4th subdivision of the will designating guardians of these children was void and asked that the residuary fund be transferred to her as general guardian, and the surrogate has adopted her construction of this paragraph. The exclusive power vested in the husband by the common law.to appoint a testamentary guardian of his children, even though their mother survived him, has been abrogated and the matter is now regulated entirely by statute. (Matter of Schmidt, 77 Hun, 201.)
Chapter 175 of the Laws of 1893 amended section 1 of title 3 of chapter 8 of part 2 of the Revised Statutes by providing : “ Every married woman is hereby constituted and declared to be the joint guardian of her children with her husband, with equal powers, rights and duties in regard to them with the husband.” It further gave the surviving parent authority by' will or deed to “ dispose' of the custody and tuition ” of their unmarried minor children during their minority or for a less period. This statute was in substance re-enacted in section 51 of the Domestic Relations Law (Laws of 1896, chap. 272), which has been since amended by chapter 159 of'the Laws of 1899. ,
It is obvious that by this section a consistent scheme was designed, vesting authority over the minor children and of their property in the father primarily, and upon his death in the mother. The
The object of the statute in Vesting the power over the children m the surviving mother was to place her on the same plane as the father and to render the .authority absolute and not subject to diversion at his behest or instance.
. The attempt of"Mr. Burdick, therefore, to dispose of the guardianship of .the person and also of the estate of his children to the exclusion of their mother is in violation of the statute.
. It is strenuously urged, however, that these so-called guardians of the estate aré trustees of the property bequeathed to these children or . are intrusted with its management and control the same as trustees.
The testator had the-power to name trustees of his estate, to direct the method of its investment and expenditure and.the inception and ■termination of the authority, but. that has not been done by his will. He designates the-persons named “joint guardians of the estates of each of my three children” and the funds are to be managed and controlled by them “ jointly as such guardians.” The term “ guardian ” has a definite signification and the powers and duties of that functionary are regulated by statute and he is subject to control and investigation" by the surrogate. (See Dóm. Bel. Law, ,§§ 52, 53, as amd. by Laws of 1903, chap. 3(>9; Code Civ. Proe. § 2472.) The functions which these .persons would exercise pursuant'to this will would be entirely those of guardianship'and their authority would
In Post v. Hover (33 N. Y. 593), relied upon by the appellants’ counsel, while the trustee was denominated guardian, yet his' authority was minutely set out in the will, and the duties imposed upon him as the custodian of the property of the infants signified that his functions were those of a trustee. The bare name attached to the authority we concede does not determine-conclusively its character. That is fixed by the obligations accompanying the transmission of the authority.
If Burdick had prescribed the extent of this power, defined it in his will, the nature of it would have been made manifest and would override a contrary designation by name. There is nothing in this instrument to indicate that the testator used the word “ guardians ” with any other than the ordinary signification. It is apparent from the fact that he appointed guardians of the person as well as of the property of these infants that he was not aware that the statute vested the guardianship in their mother upon his decease and that he could not usurp her right. Probably if he had known of this limitation of his authority he would' have vested his estate in trustees, prescribing their duties with reference to it. We cannot cure this omission or lack of knowledge on his part. The courts indulge in great latitude in construing a will to make effectual the intention of the testator, but they cannot make a new will for him.
There is grave doubt as to the power of the testator in any event to name one person as guardian of the person and another of the estate of his children (Matter of Brigg, 39 App. Div. 485 ; affd.,
The decree should be affirmed, with costs- of all parties to be paid out of the fund. • . ''"
All concurred, except Williams, J., who dissented.
Decree of Surrogate’s Court affirmed,, witlr -costs of all parties-payable, out. of the estate.