7 Barb. 640 | N.Y. Sup. Ct. | 1850
I. As to the order appointing the respondent guardian for the infant. The respondent was the cousin german of the infant, his mother being the sister of the infant’s father. The appellant is the maternal uncle of the infant, and resides in the county of Oswego, where the infant himself resides. It was shown by the respondent, in his petition to the surrogate, that his residence was in the county of Ontario, and that the infant had two aunts and three uncles residing in Oswego. The surrogate, immediately, on the same day of the application, without appointing any other day for the hearing, of directing any notice to be given to the relatives of the infant residing in Oswego county, granted an order appointing the applicant the guardian of the person and estate of the infant. This order can not be maintained.
By the fifth section of the act entitled “ Of Guardians and Wards,” it is made the duty of the surrogate to assign a day for the hearing of such an application; and to direct such notice to be given to the relatives of the minor residing in the county as he shall on due inquiry, think reasonable. (2 R. S. 151.) This provision is modified by the act of 1837. (Laws of
II. The order appointing the respondent administrator of the estate of Orange Whitman, deceased, is also erroneous. He was only entitled to be appointed such administrator, by reason of his being a guardian of the infant. (2 R. S. p. 75, § 33.) In truth the petition presented to the surrogate furnishes decisive evidence that the respondent sought to be made a guardian of the infant, in order that, in the character of such guardian, he might obtain the administration of the estate of the deceased. The appointment of the respondent as guardian being invalid, this appointment as administrator becomes equally so. The daughter of the deceased, (whose age is. not stated,) and the
No citation to any other relatives was issued, but letters of administration were issued without notice or inquiry, founded, doubtless, on the letter of guardianship which had just been granted in violation of law. We do not wish to be understood as imputing intentional wrong to the respectable gentleman who administers the office of surrogate in the county of Oswego. All we mean to say is, that we think he acted precipitately, and indiscreetly. He did not sufficiently consider that the surrogate’s court is one of limited jurisdiction, and that the observance of all the steps made necessary by the statute are indispensable to the validity of an order or decree, in any case, where the proceeding is ex parte.
The only difficulty we perceive, on this branch of the case, is that the appeal is taken from two distinct orders, instead of one; and that the appellant does not show that he has any direct interest authorizing him to appeal. But in the answer of the respondent, no such objection is taken; the question being presented solely upon the validity of the orders which the surrogate has made. We are, therefore, disposed to decide the question upon the merits; leaving all parties to take such proceedings de novo before the surrogate, as they shall be advised.
The orders of the surrogate are reversed, with costs, &c.