| New York Court of Chancery | May 15, 1922
On July 12th, 1917, Hon. Joseph Thompson, of Atlantic City, was appointed special guardian of Leo Arthur Yieweger, of Weymouth township, Atlantic county, and there came to the hands of the guardian the sum of $6,000, which he invested on first bond and mortgage, and he now has on hand the sum of $1,620 'interest on the mortgage, no part of which has been disbursed. The infant is an illegitimate son of Professor Leo Yieweger and Emma Hensel, who are and have been living together as man and wife since July 30th, 1903, no ceremonial marriage having been contracted between them because the professor has a wife living in Germany, who deserted him there many years ago and has refused to come to this country and join him. The son of Professor Yieweger and Emma Hensel was born May 2d, 1904, and is therefore now eighteen years of age. The mother of the infant has requested the guardian to reimburse her for the maintenance and schooling of the child, and that the boy be allowed sufficient money to> purchase an automobile to use in going from his mother’s house, in Estelville, to Ocean Citjq to attend a summer school. Heretofore he has attended school in Atlantic City, graduating from the high school there. These natural parents appear not to be in a position to give the boy the education which they and he think he is entitled to have. The guardian says he is in doubt as to what course should be pursued with reference to the accumulation of interest in his hands, but believes that it should be applied at least from this time on to the care and education of the minor, and asks the advice of this court in the premises. Letters of the mother and her son to the guardian are annexed to the petition. The boy is bright and has exalted ideas, as his letter to Judge Thompson indicates.
The mother of an illegitimate child is its natural guardian and bound to maintain it. Friesner v. Symonds, 46 N. J. Eq. 521. By the common law an illegitimate child is nullius films,
In re Hannah Barry, 61 N. J. Eq. 135, the application was to use part of the principal of an infant’s estate for her support, and Vice-Chancellor Emery observed (at p. 140) that the gen
Where one acting in a fiduciary capacity is directed to apply so much of the income of a fund to the support of an infant as in his judgment may be necessary, the question as to the amount to be so applied is in the first instance committed to him, and his judgment on that question is not subject to judicial revision so long as he exercises a fair and honest discretion. Read v. Patterson, 47 N. J. Eq. 595.
The application of the above principles to the case in hand results in instruction to the guardian to reimburse the mother for the care and support of her infant son, if in fact she has supported him, during the period of six' years last past, as the statute bars her right to recovery for a period anterior thereto, no circumstance appearing which renders such defence inequitable ; that he expend sufficient money out of the boy’s income, either future or accumulated, to provide him such an education as the guardian thinks he should properly have, and along lines for which he appears to show a special aptitude. Now, as to allowing the boy sufficient money to purchase an automobile to use in going from his home, in' Estelville, Atlantic county,, to Ocean Cit3r, Cape May county: For some time he attended school in Atlantic Cit3r. To do so he was obliged to go from Estelville to Mays Landing, five miles, to take a train to Atlantic Cit3r, which is about twenty-three miles. To go to Ocean City he will have to go to Mays Landing and there take a train to Ocean City, about twenty-two miles, unless he gets an automobile. If he owned an auto he could, I assume, proceed all the way to Ocean City in it, as he could have done to Atlantic City, if he had had one. As he was obliged to go from Estelville to Mays Landing to attend school in Atlantic City, he can, of course, do the same thing in order to go to school in Ocean City. It seems to be a matter of some impropriety to purchase an automobile for a minor out of his estate and turn it over to him.
With respect to any amount to be paid the mother for expenses incurred in maintaining and schooling the boy within the period of statutory limitation, and, for allowances for his future maintenance and education, the guardian must exercise his own judgment as to necessitjr and reasonableness, subject to approval on the settlement of his account.
Judge Thompson is the special guardian'of Leo Arthur Yieweger, appointed under the act relative to the sale of infants’ lands (Comp. Stat. p. 2804), and is not his general guardian. The question is: May the court lawfully delegate to a special guardian appointed under this statute the powers of a. general guardian with reference to the control and disposition of the proceeds of the sale made by the guardian of an infant’s interest in real estate? This question, in my opinion, is to be answered in the affirmative. Section 9 of the-act provides that when any special guardian appointed under it shall have sold the lands of an infant and has accounted, it shall be lawful for the chancellor to order and direct him to pay the proceeds, after deducting commissions and expenses, to the general guardian of the infant. In the Matter of Anderson, 17 N. J. Eq. 536, the court of errors and appeals held that an appeal would not lie from an order of the chancellor refusing to direct a special guardian appointed by him to pay over the moneys derived from a sale of the minor’s land to the general guardian; and in the opinion Chief-Justice Beasley, speaking for the court, said: .“The chancellor conceiving, apparently, that it was not for the interest of the infant to
Observation on this score might well end here, but it is perti-’ nent to make reference to the condition of the bond of a special guardian as provided for in section 2 of the act for the sale of infants’ lands. It is “for a just and faithful performance of the trust reposed in such guardian and for the observance of such orders and directions as the chancellor shall from time to time make in the premises in relation to such trust.” This clearly contemplates that the guardian shall perform the trust under such orders and directions as the chancellor shall from time to time make during its continuance. It cannot be thought that if tire funds were not turned over to a general guardian the court would not permit their administration for the benefit of the infant during his minority, especially in a case like the instant one, where the income at least is needed for the infant’s maintenance and education. That is not all: The first section of the act provides that from the institution of proceedings for the sale of infants’ lands, the minor shall, so far forth as relates to the property sought to be sold, its proceeds and income, be considered the ward of the court of chancery. A ward in chancery is an infant who is under the superintendence of the chancellor. Bouv. Law Dict. (Rawle’s Rev.) 1210.
I am clearly of opinion that a special guardian of an infant may lawfully exercise the powers of a general guardian with reference to the proceeds of the sale of the infant’s lands which come to his hands as such s]oecial guardian under the act relative to the sale of infants’ lands (Comp. Stat. p. 2804), when so ordered and directed by the chancellor.
The guardian will be entitled to five per cent, commission on the income. No commission on the corpus will be allowed until the guardianship ends on the infant attaining his majority, three years hence.