In re Whitemore's Estate — 9 N.Y.S. 296

Majority

p. 296

In re Whitemore’s Estate.

(Surrogate’s Court, Kings County.

November, 1888.)

Headnote

Guardian and Ward—Payment to Guardian oe Non-Resident—Petition.

Under Code Civil Proc. N. Y. § 2838, which provides that a general guardian of an infant who resides without the state, and within the United States, and is entitled to property in this state, may present a petition, duly verified, to the surrogate court, asking for ancillary letters of guardianship, a petition which is not signed by the guardian, and is verified by his attorney alone, is insufficient, in the absence of proof of any authority in the attorney to act except his own declaration.

Virginia W. Green, an infant residing in the state of Texas, being entitled to money bequeathed to her in this state by the will of John M. Whitemore, deceased, Charles J. Green, her general guardian, filed a petition in the surrogate court in this state for ancillary letters of guardianship. The petition was verified by his attorney alone, and the name of the guardian was signed by the attorney. Ancillary letters were granted by the surrogate, and the guardian then made application for the payment to him of money belonging to his ward, but the executors of Whitemore refused to pay over the money, claiming that the petition for ancillary letters of guardianship was insufficient, under Code Civil Proc. H. Y. § 2838, to confer jurisdiction on the court. That section provides that, where an infant who resides without the state, and within the United States, is entitled to property within the state, a general guardian of his property may present to the surrogate’s court having jurisdiction “a written petition, duly verified, setting forth the facts, and praying for ancillary letters of guardianship accordingly. ”

Howard R. Bayne, for petitioner. Henry W. Gaines, for the executors.

This matter comes before me on the petition of the general guardian of an infant, appointed in a foreign jurisdiction, for the payment to him of certain moneys bequeathed the infant by the will of the deceased, The petition is signed by an attorney for the petitioner, and is verified by the attorney. It is conceded that to sustain the application ancillary letters in this state are necessary. The executors, upon the sole ground that, under section 2838 of the Code of Civil Procedure, ancillary letters could only be granted by this court upon the written petition of the foreign guardian, duly verified, oppose the application. The letters objected to have been issued upon a petition in the name of the guardian, not signed by him, but by attorney, and verified by attorney alone.

Counsel have not submitted any authorities, and I have been unable to find any bearing on the question save the ease of Russell v. Hartt, 87 N. Y. 19 , where it was held that, where a legatee and executrix named in a will, by a power of attorney duly executed, appointed another her agent and attorney, in her name and place, to present the will for probate, to have the same duly proved, and to ask for and receive letters of administration, the attorney properly acted in the premises. The objection to the present application, however, seems to me to be in the fact that there is no proof of the authority in the attorney to act, save in the declaration of the attorney; and, while it might be sufficient, if a power to act was produced, I suggest that the guard

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ian, in order to avoid any objection as to his right to delegate his power, could with equal facility sign and verify a new petition for ancillary letters.

Application denied, with privilege to renew.

Cases cited

Russell v. Hartt 87 N. Y. 19 N.Y. 1881-11-22 p. 296