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In re Howe

2 Edw. Ch. 484 Court N.Y. Ch. Decision date 1835-08-18 English

Contents

Majority

p. 484
In the matter of Howe, infants.
August 18, 1835.

Headnote

Where creditors apply for payment of their debts out of a fund and children are interest-» ed in it, a guardian ad litem will be appointed for them to appear before the master to? scrutinize the creditors’ claims and protect their rights.
Creditors applying to prove their debts against a testator’s estate, are to be allowed all costs incident to it out of the fund.
Mode pursued by the master in taking proof from the creditors; note (a).
a sale of infant’s real estate had taken place, for the purpose of paying debts ; and the amount of the sale had been brought into court. Upon an application for an order of reference to a master to take proof of debts. The Vice-Chancellor considered there ought to be a guardian ad ^iem for the children, in order to protect them from improper charges by the creditors. The following order was entered:
“ It is ordered, that it be referred to William Van Wyck, Esquire, one of the Masters of this Court, to take proof of the debts due by the said Jedediah Howe, deceased, and that the said Master' do cause notice to be given daily for three weeks in one of the public newspapers published in the city of New York and once a week for three weeks in the state paper, for all creditors of the said intestate to come in before him and prove their respective debts and that he fix a peremptory day for that purpose; and such of them who shall not come in before the said Master and prove their debts by the time so to be limited are to be excluded from the benefit of this decree. And it is further ordered that C. E. Esquire, one of the solicitors of this court be and he is hereby appointed guardian ad litem for the said infants, to attend before the said Master in their behalf and protect their rights herein; and that the said Master do
p. 485
report with all convenient speed—and all further directions are reserved until the coming in of the said report.”[1]
October 24.

Upon the coming in of the master’s report, the guardian ad litem suggested, whether the creditors, who had obtained the reference, ought not to bear the whole of the costs of it; and cited Bennett’s Master, 55, where he says, ‘’Every creditor establishes his claim at his own expense.” But The Vice-Chancellor decided that the fund in court must bear the expenses of the master, guardian ad litem and solicitor of the creditors.