p. 644Clark, of New Rochelle, Westchester county, counseHor at law, be appointed such special guardian. The written consent of Mr. Clark, to act as such, accompanied the petition.
Gbobge M. Curtis, attorney for petitioners.
Lowbey, Stoke & Auerbach, of counsel.
Here is presented a question entirely novel in its character. Has this court the power to appoint a special guardian, as asked to do, under the circumstances. The learned counsel have not been able to refer me to any statute, or case reported, bearing upon it, nor have my researches been more successful. To repeat what has been so often declared by various tribunals, Surrogates’ courts are of limited jurisdiction; exercising only such powers as are expressly conferred by statute, together with such incidental ones as necessarily spring from the grant of the main powers. Tire only direct authority, empowering this court to appoint a special guardian for an infant, is found in §§ 2527 and 2530 of the Code of Civil Procedure. The first of those sections has reference only to a case where an infant has been, or is to be, cited, and the second, to an infant who is already a party to a proceeding. Thus, power is conferred to make such appointment only in a pending proceeding. Article 4 of title 2 of chapter 5 of the Code, embracing §§ 468 to 477, regulates the mode in which an infant may bring and defend actions, to wit, through a guardian to be appointed by the court. By reference to subd. 3 and 4 of § 3347, it will be seen, however, that these-
p. 645provisions do not apply to Surrogates’ courts. It is, nevertheless, urged by counsel, that “the infant, being entitled on general principles, to the protection of the court, the power to appoint, if not clear, should be sought for, not avoided; ” and, in support of this view, they refer me to the maxim “ Boni judiéis est ampliare jurisdiciionem^ (Chan. Prac., 329). A good judge will, when necessary, extend the limits of his jurisdiction (Maxim 14, Wharton’s Legal Maxims). Mr. Wharton comments thereon as follows: “The word £jurisdiciionem’ should be, according to Lord Maxseield, £ justitiamj and the meaning of the.maxim, in such case, is that to be a good judge is to amplify in his office the remedies the law gives, so as, in the most perfect manner, to do the most complete justice, not letting substantial justice be frittered away by nice and unmeaning technicalities as a means of avoiding giving a decision according to very right, in broad and substantial justice. And this he has the power and authority to do in all those cases which, by the common law, by the practice of his court, and by legislative enactment, are left to his discretion—meaning by discretion the exercise of sound judgment upon the facts, or, as it is stated by Lord Maxseielb to be— sound discretion guided by law, governed by rule, not humor; not arbitrary, vague, and fanciful, but legal and regular, according to the maxim, £JDiscretio est dis~ cernere per legem quid sit justumj But the maxim does not mean that a good judge will exceed the limits of his jurisdiction, or that he will do anything other than that which, by the law and practice of his court, he is authorized to do.” These remarks tend to show
p. 646that the invoking of this maxim by counsel, instead of aiding, rather militate against the view they urge. In the first place, it is a Chancery court maxim, and if it has any effect beyond that court, it must be tionfined to judges of courts of general and not limited statutory jurisdiction; in the second place, it would seem to have reference to a judge’s action upon the merits or justice of a case; and lastly, it is declared not to mean that a good judge will exceed the limits of his jurisdiction. This may be regarded as applying, with added force, to one who derives all his powers from statute law.
Before our first Code, an infant had to prosecute his action by his next friend, technically called prochein amy—or ami, and who was unknown to the law prior to the statute of 1 Westm., 3 Edw. 1st., ch. 47. “It is he who appears in court for an infant who sues any action, and aids the infant in pursuit of his action.” The mode of procuring the appointment was then, and has since continued to be, very similar to that sought to be pursued in this case, but the proceeding was taken in courts having general jurisdiction (Jacobs Law Diet., Title, “Prochein amy”). The term then used, is now discarded, and the person appointed, either to institute or to defend an action for an infant, is denominated a special guardian, or guardian ad litem. It may be safe to say that, ever since the statute, 1 Westm., referred to, the various courts, except perhaps that of the Chancellor and of those on which his powers are devolved, in making the appointment, have found their authority to do so in some statute. This indicates the abiding solicitude of legislatures for the
p. 647welfare of the dependent and helpless ; for the protection of their person and property. No court, except as above, can take any step in regard thereto without legislative sanction. Especially is this so in Surrogates’ courts. At the same time, infants may legally perform certain acts as if they were of age. For instance, they may, at common law, act as executors at the age of seventeen, in all of the states except those where the rule has been changed by positive enactment (Tyler on Inf., and Cov.,
41). In this State, they are made incompetent by statute. Females are of age in Vermont at eighteen (id.,
Ml). But that fact will not aid Mrs. Watson, as she is not of age here. Still, she ought not to be deprived of the privilege of attempting to assert her alleged rights, and it would be a little remarkable if the state of our laws is such as to render her utterly helpless in this emergency. I think a proper consideration of the provisions of the Code will furnish a solution of the difficulty.
It was held under the Revised Statutes, and probably the same doctrine prevails now, that if an infant should bring his action without prochein ami or guardian, it was a mere irregularity, and no ground of nonsuit, but that advantage could be taken of the irregularity only by plea in abatement (Tyler on Inf., and Cov., 194; Schemerhorn v. Jenkins, 7 Johns., 373 ; Fellows v. Niver, 18 Wend., 563 ). In such case, the court would doubtless retain the cause, and supply the defect by making the proper appointment. So it would probably be in this court, if a minor were required to institute a proceeding here by a special guardian. But there is no such provision. On the contrary, the Code
p. 648implies this personal right of an infant to petition, by providing that a ward may, under §§ 2832 and 2837, institute, in his own person, proceedings against his general guardian; and so under § 2846, he may, personally, present a petition to the court for the purpose therein indicated, and in either case, I am. inclined to think, the court should appoint a special guardian, under § 2530, on the return day of the citation, when one is issued, for the ward who is a party to the proceeding.
Kow the Code provides by §2614, that a “person designated in a will as executor, devisee or legatee or any other person interested in the estate,” etc., may present a petition for the probate of a will. Kot unfrequently an infant is designated in a will as executor. A “person interested” is defined, by § 2514 subd. 11, to be “every person entitled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except a creditor.” Here is no restriction as to age, or mental condition. Any “person interested” may do this. After having presented Ms petition, the Surrogate must issue Ms citation. When he has done that, the petitioner has become a party to a proceeding, and on the return day of the citation, if it appear that this party is an infant or alunatie, and does not appear by Ms general guardian, or his committee, the Surrogate must, under § 2530, appoint a special guardian for him. By § 2647, “a person interested in the estate of the decedent ” may petition for the revocation of probate. Here, also, there is no restriction as to age or condition of mind. The right is not confined to
p. 649a person of full age or sound mind. It would only bo on the return of the citation issued upon such petition that the court would have power to appoint a special ’■guardian. It is no longer necessary for an applicant to verify his petition before the Surrogate, but it may be done before any officer authorized to administer oaths. Suppose, therefore, a petition for the probate of a will duly verified in the city of New York, or elsewhere, and containing a statement of all the facts necessary to confer jurisdiction of the subject matter upon the court under § 2614, were presented through the mail, or in any other manner, the Surrogate must issue a citation, according to the prayer thereof. He has no discretion upon the subject. This he must do, in the absence of any informtion as to the age or sanity of the petitioner. On the return day, if it appear that the petitioner were a minor, a lunatic, or an habitual drunkard, the jurisdiction of the court would be in no way affected thereby ; but it would, at once, proceed to appoint a special guardian for such petitioner, and the progress of the matter would be unimpeded.
I have thus endeavored to show, while denying the prayer of the petitioner in this case because I have no power to appoint a special guardian as desired, that there yet is a door through which she may enter, in search of such relief as she may deem herself to be entitled to.
Application denied.