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time of the application, so far as relates to the property, its proceeds or income, and the court shall make order for the application and disposition of the proceeds of such property, and for the investment of the surplus belonging to such infant, so as to secure the same for the benefit of such infant, and shall direct a return of such disposition and investment to be made on oath as soon as may be, and shall require accounts to be rendered periodically by any guardian, or other person who may be intrusted with the disposition of the income of such proceeds.(1)
The proceeds of a sale under this act are not rendered personal estate. The 186th section provides, that no such sale shall give to the infant any other or greater estate or interest in the proceeds, than he had in the estate so sold ; but the said proceeds shall be deemed real estate of the same nature as the property sold.
APPOINTMENT OF A GENERAL GUARDIAN.
1 Petition by in.
For the purpose of having a general guardian appointed, fant, &c.
the infant, if of the age of fourteen years or upwards, or some relative or friend, if the infant is under fourteen, may present a petition to the court, stating the age and residence of the infant, and the name or residence of the person proposed or nominated as guardian, and the relationship, if any, which such person bears to the infant, and the nature, situation, and value of the infant's estate.(2)
If an estate in lands has become vested in the infants, the guardianship of such infant, with the rights, powers, and duties of a guardian in socage belongs to the father; if there be no father, to the mother; and if there be neither father nor mother, to the nearest and eldest relative of full age, not being under any legal incapacity. Between relatives of the same degree of consanguinity, males shall be preferred.(3) All statutory provisions relative to guardians in socage are applicable to such guardians.(4)
(1) 2 R. S., 195, § 185.
(2) Rule 150.
But the rights and authority of every such guardian, shall be superseded wherever a testamentary or other guardian shall have been appointed under the eighth chapter of the third title of the act.(1)
By that chapter, the right of a father to appoint a testamentary guardian is recognised and regulated, and provision is made for such appointment by a surrogate in other cases, with the right of appeal to the chancellor.(2)
It is observed by chancellor Kent, (Commentaries, 2 Vol. p. 226,) that guardians by socage or nature have become essentially superseded in practice, by guardians appointed by the court of chancery, or by the surrogates of the several counties.
The authority of the chancellor in the appointment of guardians, is a part of his general jurisdiction over minors and their estates. It continues until the majority of the infant, and is not to be contested by the infant upon his arriving at the age of fourteen.(3)
I do not understand that any provision of the Revised Statutes, has abolished the right of the father to take the rents of lands given to an infant, which he had before the statutes, as guardian in socage.
See Putnam v. Ritchie, 6 Paige, 398.
But as to the personal estate, it appears settled, that the father, as guardian by nature, is not entitled to receive money given to his infant child.(4) Some person must be appointed by legal authority. For the form of the petition, see Appendix, No. 302.
2 Previous to presenting the petition to the court, the peti
Inquiries by tioner, if the infant reside in the city of New-York, shall pre- a master. sent the petition to the taxing or injunction master, or to one of the exception masters in that city; or if the infant resides in any other county, to the master nearest his residence; or if he resides out of the state, to any exception, taxing, or injunction
(1) 1 R. S., 719, $ 7.
(2) 2 R. S., 150. (3) Kert's Com., Vol. IV., p. 226, and Cases.
(4) Cunningham v. Harris, reported 3 Bro. Ch. Rep., 186. Genet v. Talmadge, 1 Johns. Ch. Rep., 3. I have not met with any case settling whether payment of the income of personal estate to a father would be valid.
master, in order to make certain inquiries directed by the rule.(1)
The master shall, by inspection or otherwise, ascertain the age of the infant; if he is of fourteen years or upwards, he shall examine him as to his voluntary nomination of a person as guardian ; if he is under fourteen, the master shall ascertain who is entitled to the guardianship, and shall name a proper and competent person as guardian.(2)
He is also to ascertain the amount of the personal property, and the gross amount or value of the rents and profits of the real estate of the infant during his minority; and also the sufficiency of the security offered by the guardian.(3)
In making such inquiries, the master, in his discretion, may direct notice to be given to such of the relatives of the infant as he may think proper, to appear before him, and be heard in relation to the application. And it shall be the duty of the master in all cases, to see that the rights of the infants are properly guarded and protected, and he may require the attendance of such witnesses before him, to give testimony on the subject
of the application as he may think necessary or proper.(4) 3 Master's re- The master shall annex to the petition, a report containing port.
the particulars mentioned in the rule, specifying what relatives or friends of the infant have been notified to appear before him, if any, and if none have been notified, stating the cause thereof. The report must also state, that each of the persons proposed is worth the requisite amount, over and above all his debts, or that the real estate proposed to be given as security, is
of the value required by the rules of the court.(5) See the re4
port, Appendix, No. 303. Security. The security to be given by the general guardian of an in
fant, shall be a bond in a penalty of double the amount of the personal estate of his ward, and of the gross amount or value of the rents and profits of the real estate during his minority, together with at least two sufficient sureties, each of whom shall be worth the amount specified in the penalty of the bond over and above all debts; or instead of personal security, the guardian may give security by way of mortgage, on unincum
(1) Rule 151.
bered real property, of the value of the penalty of his own bond only.(1)
The court, however, may vary the security where, from special circumstances, it may be found for the interest of the infants; and may direct the principal of the estate, or any part thereof, to be invested in public stocks, or with the Trust Company, or on bond and mortgage, in the name of the register, assistant register, or clerk, for the benefit of the infant, and that the interest or income thereof only be received by the guardian.(2)
The duty of the master, in ascertaining the requisite security and the sufficiency of the sureties, is the same as under the 157th rule. See ex parte Lansing, 3 Paige, 265.
The petition and report must be presented to the court, Order of apwhen an order will be made for the appointment of the guar
pointment. dian; or the court may direct a further reference, and direct what relatives or friends of the infant shall have notice to attend on the same. See the order, Appendix, No. 304. And the form of the bond, Appendix, No. 305.
The appointment shall not be valid, until the requisite security is given and filed in the proper office, with the certificate of the master endorsed thereon, approving of the form and manner of the execution thereof.(3)
The general guardian of an infant, cannot receive any part Power as to of the proceeds of a sale of real property belonging to such in- proceeds of fant, sold under a decree or order of the court, until he has given such further security for the faithful discharge of his trust, as the court may direct.(4)
And by the 149th rule, no moneys arising from a sale of the real estate of an infant under any order or decree, except so much of the income as may be necessary for his support, shall be paid to the general guardian, unless security has previously been given by him on unincumbered real estate, to account to the infant in the usual form. If a guardian has been appointed by a vice-chancellor, an
Removal. application for his removal, or to compel an account, should be made to that officer, or his successor.(5)
(1) Rule 148.
(3) Rule 153. (4) Rule 147. See Ferris v. Brush, 1 Edw. Rep., 572. (5) In the matter of Kennedy, 5 Paige, 244. VOL. II.
Every general guardian shall, within six months after his Inventories
, appointment, file in the office where the appointment is entered,
a just and true inventory under oath, of the whole real and personal estate committed to his care or guardianship, and of the manner in which any funds under his care or control belonging to the estate are invested; stating the income and profits of the funds or estate, and the debts, credits and effects, so far as the same have come to his knowledge.(1) For the form of an inventory, see Appendix, No. 306.
INFANT TRUSTEES AND MORTGAGEES.
By the statute (2 R. S., 193, § 173,) whenever any infant shall be seised or possessed of any lands, tenements, or hereditaments, by way of mortgage, or in trust only for others, the court of chancery, on the petition of the guardian of such infant, or of any person in any way interested, may compel such infant to convey and assure such land tenements and hereditaments, to any
in such manner as the said court shall direct.
And every conveyance or assurance made pursuant to such order, shall be as good and effectual in the law, as if the same were made by such infant when of lawful age.(2)
This is a re-enactment of the former act, (that of 1813,) without alteration. The English statute from which it was taken, is the 7th of Queen Ann, cap. 19.
In the anthor's former work, the authorities are collected upon the question, who are infant trustees within the act, and the course of practice in the master's office is stated.(3)
The English authorities were contradictory upon the point, whether the infant heir of a vendor, when the contract was unfulfilled, was within the act. By a statute of our state, Laws,
(1) Rule 154.
(2) 2 R. S., 194, 174. (3) Office, &c., Masters in Chancery, p. 141.