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Such master shall inquire, and certify whether the person proposed as guardian, is a suitable and proper person for that purpose, and whether the persons proposed as his sureties are each worth the requisite sum over and above all debts, or that the land proposed to be mortgaged by way of security is unincumbered, and of the required value.(1)
If there is a general guardian of the infant already appointed, suchguardian. he is the proper person to be appointed guardian to effect a sale. And this whether he has been so appointed by a surrogate, or by this court. But if the general guardian cannot procure security, another person may be appointed.(2)
Additional security must be given by such general guardian; as the security given by him, whether he is appointed by the surrogate or this court, is only to cover the amount of the rents during the minority.(3)
If the master is not satisfied with the person nominated as guardian, or with the security proposed, he may name a suitable person as guardian, and state what further or other security should be given.(4)
The husband of an infant cannot be appointed the guardian to make such sale.(5)' He may join with the general guardian if there is one, or a next friend.(6)
The guardian shall give bond to the infant, to be filed with Security. the register or assistant register in such penalty, with such sureties, and in such form as the court shall direct, conditioned for the faithful performance of the trust reposed; for the paying over, investing, and accounting for all moneys that shall be re
quiries, as well as to save expense. It would be always expedient to follow it literally, and to take the master whose office was in the nearest street. But there can be no doubt that a purchaser would be safe, if the proceeding was before a master in any part of the city, the most remote from the residence of the infant. It is a case which the court must look to, and not the purchaser.
(1) Rule 159. The 171st section (2 R. S., 194) of the statute is, that on such application, the court shall appoint one or more suitable persons guardians of such infant, in relation to the proceedings.
(2) In re Wilson, 2 Paige, 412. (3) 2 R. S., 151, § 8. Rule 151.
(4) Rule 159. (5) In re Whittaker, 4 Johns. C. R., 378. In re Lansing, 3 Paige, 265.
(6) Ibid. VOL. II.
ceived by such guardian, according to the order of any court having authority to give directions in the premises ; and for the observance of the orders and directions of the court in relation to the said trust.(1)
And by the 157th rule, the security required on the sale of the real estate of an infant, shall be a bond of the guardian, with two sufficient sureties, in a penalty of double the value of the premises, including the interest on such value during the minority of the infant, each of which sureties shall be worth the penalty of the bond over and above all debts; or a similar bond of the guardian only, secured by a mortgage on unincumbered real estate of the value of the penalty of such bond.(2) The sureties should make an affidavit of their sufficiency. See
the form, Appendix, No. 294. Master's certi- The master, after making the requisite inquiries as to the
competency of the proposed guardian, and sufficiency of the sureties, makes a certificate to that effect. See Appendix, No. 295.
It is not sufficient for the master to certify that the persons offered as sureties are worth the requisite sum, in the precise words of the rule. He should go into an examination of the age of the infant, and the actual value of his interest in the property so far at least as to ascertain that the value of the property as stated in the petition is substantially correct. And from these data he should ascertain and certify what is the requisite sum in which security is to be given.(3)
It is not necessary or proper for the master to take down and return to the court, in the shape of affidavits or otherwise, all the testimony taken before him. He may ascertain the necessary facts by a viva voce examination of the sureties, witnesses, and parties on oath, and he should certify the result of his inquiries as briefly as possible.(4)
The petition, with the certificate, is to be presented to the master's certi
chancellor or vice-chancellor. If it then satisfactorily appear, that there is reasonable ground for the application, an order may be entered, appointing a guardian for the purposes of the application, on his executing and filing the requisite security,
(2) Rule 157.
(1) 2 R. S., 194, § 178.
approved of by the master, signified by his approbation endorsed thereon.(1)
This order also directs a reference to any injunction or taxing master, or to a master specially designated by name therein, to ascertain the truth of the facts stated in the petition, and whether a sale of the premises, or any and what part thereof, would be beneficial to the infant, and the particular reasons upon
which his opinion is founded.(2) It is needless to state more of the provisions of the 160th rule, because the order under which the master acts must follow it with great precision. See the form, Appendix, No. 296.
It will be observed, that in the form of the order is contained a clause, that the bond shall be acknowledged according to the provisions of an act relative to proceedings in suits commenced by declaration and for other purposes.
This act was passed April 29th, 1833, (sess. 56, cap. 271, $ 9.) And it was therein provided, that every written instrument (excepting promissory notes, bills of exchange, and last wills) may be proved or acknowledged in the manner now provided by law for taking the proof or acknowledgment of conveyances of real estate.(3)
The officer with whom the bond is filed, must see that it is properly executed before he gives the certificate directed by the 160th rule.(4)
9 The master shall not proceed upon the reference, until the Proceeding guardian produces to him a certificate of the register, assistant under this or
der. register or clerk, that the bond has been duly proved or acknowledged, and filed agreeably to the order of the court.(5)
The master must not rely upon the petition as evidence of the facts he is to ascertain. He must examine witnesses as to them.(6)
The order founded upon the 160th rule, is, 1st, to ascertain the truth of the facts stated in the petition. These are the age and residence of infant, the situation and value of his real and personal estate, the situation, value, and annual income of the
(1) Rule 160.
real estate proposed to be sold, and the truth of the reasons (which can scarcely be any thing but facts) for making a sale.
It will be seen, that as to some of these matters, viz: the age of the infant, and the value of the property to be sold, the master must have inquired, when the petition was presented to him, if the same master acts in both instances. The testimony then used may undoubtedly be resorted to under this order.
The value of the real estate of the infant, exclusive of that proposed to be sold, and of the personal estate, are new matters of inquiry. And the course is to take the affidavits of persons connected with the infant by kindred, or business, or of any persons from whose situation the master thinks the most accurate information can be obtained.
2d. The reasons which are stated in the petition as to the necessity or propriety of a sale, are next to be inquired into under the comprehensive language of the 160th rule.
The fact that the property of an infant is liable to the expense of a proceeding in partition by adult owners of an undivided share thereof, is always taken into consideration in deciding upon the propriety of authorizing a sale. It is always a good reason for selling an infant's undivided share, that the estate is held in common with adults, and that its value is small when compared with the expense of a partition suit, to which it will be subjected, if a sale by a special guardian should be refused.(1)
The language of the statute, it will be observed, is very broad, as to the authority of the court. After specifying several particular cases, it empowers the court to make a sale wherever it shall appear beneficial to the infants for any other peculiar reasons or circumstances. (8 181.)
The master having finished his inquiries, under this order • makes a report. See Appendix, No. 297.
Upon this, if the court see no objection, an order is made, giving authority to the guardian to contract for a disposition of the property either at private or public sale, first reporting the terms of such agreement to the court for its approbation.(2) Appendix, No. 298.
11 Order to contract.
(1) In the matter of Congdon Infants, 2 Paige, 566.
(2) 2 R. S., 195, § 183. Upon an agreement for a sale leasing or other disposition of such property being made, the same shall be reported
For the form of such a report by the guardian, see Appen
12 dix, No. 299.
Report of And a final order of confirmation is then made, directing a guardian, and conveyance and the appropriation of the proceeds. Appendix, No. 300.
All sales, leases, dispositions, and conveyances made in good faith by the guardian in pursuance of such orders, when so confirmed, shall be valid and effectual as if made by such infant when of full age.(1) For the form of the deed, see Appendix, No. 301.
The practice has varied much, whether to make the infants by name parties of the first part, by their guardian, in the same manner as the deed of a principal executed by an attorney, or to make the guardian by name party of the first part.
In proceedings under the statute as to infant trustees, it seems well settled by practice that the former is the proper form, and this is sanctioned by a decision of the vice-chancellor of the first circuit.(2) See Office, &c., of Masters in Chancery,
The language of the statute in the case of infant trustees is somewhat different, and the practice of the most experienced counsel in New-York, is to make it the deed of the guardian.
14 I have pursued the course of obtaining from the guardian, a Final report. report of the consummation of the sale by the execution of the conveyances, the reception of the money, deductions for costs, &c., and disposition of the balance. This was filed with the assistant register when the proceeds were deposited. And I obtained also an order confirming this report, and the sale and conveyance so made. See section 184.
If the proceeds of the sale exceed $500, and the guardian has not given security by mortgage upon real estate, he shall bring the proceeds into court, that the same may be invested in stocks, or put out at interest by the register, &c., for the use of the infant.(3)
The infant is declared to be a ward of the court from the
to the court on the oath of the guardian making the same; and if it be
(1) Ibid. § 184.
(3) Rule 161.