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In re Patterson

15 N.Y.S. 963 Court N.Y. Sur. Ct. English

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p. 963
In re Patterson.
(Surrogate's Court, Westchester County.
July, 1891.)

Headnote

•Guardian and Ward—Reducing Amount op Guardian’s Bond.
A petition by the guardian of an infant for leave to file a bond in a penalty less than that of the original bond, and to release petitioner and his surety (a surety company) from the original bond, alleged that all the funds that had come into his hands as guardian had been paid out, except a certain small sum, and that all the ward’s land had been sold by order of court, and the proceeds deposited with the county treasurer, to be paid to the ward on his attaining his majority. Held, that the petition would be denied, though petitioner was obliged to pay his surety its charge for acting as such on the bond originally given; Code Civil Proc. N. Y. § 2597 et seq., which authorize the increasing of the penalty of a guardian’s bond, containing no provision relating to a reduction thereof.
Application by William Patterson, who had theretofore been appointed general guardian of Louis H. Patterson, an infant, and had given bond as such guardian in the penalty of $2,100, with the Fidelity & Casualty Company as surety, praying that on filing a new bond in the sum of $-, with sufficient sureties, petitioner and his surety be released from liability on the bond originally filed on petitioner’s appointment. The petition alleged that the only property which had come into his hands as guardian, and which had not been paid out, was the sum of $153.46, and that the land of the ward had been sold under an order of the supreme court, and the proceeds thereof had been deposited with the county treasurer of Westchester county, to be paid to •the ward on his attaining his majority.
Mills & Bridge, for petitioner.

It is not discovered that the section of the Code cited by counsel[1] has any bearing upon the power of the surrogate to make the desired order. It simply relates to the power to appoint a guardian, while the prayer of the petitioner is for an order to substitute a new bond (say $400) "for one of a larger amount, filed on obtaining the letters, in the first instance, by the guardian already appointed. By sections 2597, 2598 et seq., Code, provis

1 Code Civ. Proc. N. Y. § 2821, cited by counsel, is as follows: “The surrogate’s court has the like power and authority to appoint a general guardian, of the person or of the property, or both, of an infant, which the chancellor had, on the thirty-first day of December, eighteen hundred and forty-six. It has also power and authority to appoint a general guardian, of the person or of the property, or both, of an infant whose father or mother is living, and to appoint a general guardian, of the property only, of an infant married woman. Such power and authority must be exercised in like manner as they were exercised by the court of chancery, subject to the provisions of this act. The same person may be appointed guardian of an infant in both capacities, or the guardianship of the person and of the property may be committed to different persons."

p. 964
ion is made for the increase of the penalty of the bond of an executor, administrator, or guardian, but none is found relating to the reduction of the penalty. It is claimed, however, that if the court has power to increase, it has power to diminish. But the first, as is seen, is given by statute, while none is conferred as to the latter. Nor can any good reason be assigned why the amount of the penalty of a bond, based upon ascertained facts as to the value of an estate, should be reduced. The fact that the estate or fund lias been diminished by unavoidable losses, by the payment of debts or legacies, or payments on account of distributive shares, or other like causes, furnishes no ground for such reduction. To the extent of such losses and payments the liability on the bond would be diminished, and there would be no reason to ask it. Were such power as is here asked to be exercised, assumed by this court, probably similar applications would be very frequent and numerous. Tlie reason for this application, it is understood, is not for the benefit of the ward, but of the guardian. He has to pay the Fidelity & Casualty Company, which is his surety, its charge for acting as such on the bond originally given. This does not concern the ward, for, as held by me in the case of Jenkins v. Shaffer, 6 Dem. Sur. 59, the expense is personal to the guardian, and is not a proper item of charge against the ward’s estate. If this be so, and the guardian is unwilling to incur the expense, he should seek relief by resigning, or in such other mode as he may be advised. The prayer of the application is denied.

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