Estate of Constantine — 22 N.Y. St. Rep. 883

Majority

p. 883

Estate of Margaret Constantine.

(Surrogate’s Court, New York County,

Filed March 4, 1889.)

Headnote

Guardian testamentary—When and how must qualify—Code Crv, Pro., §§ 2852, 2594.

Where a testamentary guardian is appointed under a will, he must qualify as prescribed in section 2594 of the Code, within thirty days or three months after the probate of the will, and if such appointment of a testamentary guardian is by the terms of the will, to take effect upon the happening of any contingency, he must qualif y within the time prescribed by the section, otherwise he would lose all right under the will to letters of testamentary guardianship.

Rodman & Adams, for petitioner; Louie Constantine, special guardian.

—By the last will and testament of the above decedent, admitted to probate June 19, 1883, Andrew J. Constantine was appointed guardian of the persons and

p. 884

estates of the testatrix’s minor children until the-petitioner herein should become of age; and at that time he, by the terms of the will, was appointed the guardian of the persons and estates of such of the testatrix’s children as should then be minors, and during their minority. The petitioner attained majority on the 9th day of December, 1884, and he now applies for letters of testamentary guardianship. The application, in this aspect of it, is novel, and has never, so far as I am aware, received judicial determination. Section 2852, Code Civil Procedure provides:

“ Where a will containing the appointment of a guardian is admitted to probate, the person appointed guardian must, within thirty days thereafter, qualify as prescribed in section 2594 of this act; otherwise he is deemed to have renounced the appointment.

But the surrogate may extend the time so to qualify, upon good cause shown, for not more than three months. * * * My construction of this section is that the clause “Where a will containing the appointment of a guardian is admitted to probate, the person appointed guardian must, within thirty days thereafter, qualify,” etc., not only was intended to apply to the case where a testamen-' tory guardian could quality under the terms of the will within thirty days, or three months, after the probate thereof, but also applies to the case where the appointment of a guardian is to fake effect upon the happening of any contingency; and in the latter instance, unless he qualifies within thirty days or three months from the date of the happening of the contingency, he is deemed to have renounced the appointment. In the matter under consideration the contingency happened when the applicant herein attained majority, namely, on the 9th day of December, ' 1884, which was more than a year after the will was admitted to probate. The applicant, although he has not applied within the time specified in section 2852, nevertheless claims that the court should award him letters of guardianship under the will. The argument which he has made in support of the interpretation, which he insists justifies his ■claim, is a very plausible one. The construction, however, which Surrogate Calvin has put upon the section mentioned in his decision in the Matter of the Estate of Lambrecht (19 Daily Register, No. 95) accords more with the seeming intention of the section and the interests and security of infants, and should be followed. He held, that a failure to qualify within the time prescribed by the section involved the loss of all right under the will to letters of testamentary guardianship. The petitioner having similarly failed to qualify in the present case, his application is denied.