In re Thorne — 1 Edw. Ch. 507

Majority

p. 507

In the matter of the petition of William Thorne and others, infants, by a next friend.

Headnote

Although a petition to sell infant’s real estate sets forth their inability to procure security and a master's certificate is to the same effect, yet the court cannot dispense with sureties.

Mr. J. Radcliff moved upon the petition of six infants (the eldest nineteen years of age) for leave to have a special guardian appointed, with power to sell, but without being compelled to give security.

November, 27, 1832.

The prayer of the petition was as follows :

“ And inasmuch as it is not probable that your petitioners will be able to find any suitable person who may be willing “ to become their guardian in this matter and give the security “ required, they pray that, for the purposes of the sale and the

p. 508

“ disposition of the proceeds thereof as aforesaid, the assistant “ register or clerk of this court or some other suitable person o . * “ or persons may be appointed by this honorable court the “guardian or guardians, giving, if required, such security for “ the performance of the trust as required by law and as shall “ he approved by this honorable court. And that such guar- ■“ dian or guardians may have full power and authority to sell “ and dispose of the said real estate or so much thereof as belongs to the said infants, either at public or private sale and “ to release and convey the same, &c.”—“ and to dispose of “ the proceeds, &c.”

A master’s certificate had been obtained apd was attached. It was fin this form :

“ I do hereby certify, that it has been proved to my satisfac- “ tian, that neither the infants named in the foregoing petition “ nor the mother and next friend on their behalf, upon diligent “ enquiry, have been able to find any person who is willing to “ become their guardian as proposed in the within petition and give -the security required by law. And I further certify, “ that it has likewise .been proved to me, that the value of the “ real estate belonging to the said infants and proposed in the “ said petition to be sold is .about nine hundred dollars; and that “ the security to be given by such guardian as aforesaid would “ be in the penal sum of one thousand and eight hundred dollars. Dated New York, 23, November, 1832. Thomas ■“.Addis Emmet, taxing.master, &c.”

I cannot volunteer the appointment of a guardian. The 158th rule of the court is explanatory and, at the same .time, positive. Instead of conforming to it, the petitioners show they cannot do so in any one particular. The petition, had better be withdrawn ; until some one can be found who will consent to be a guardian under the rule, and give the requisite security.