In re Beebe — 33 N.Y. St. Rep. 999

Majority

p. 999

In the Matter of the Application of Mary A. Beebe for Letters of Guardianship of the Estate of Nellie May Brien.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Infants—Guakdians.

The infant’s parents being dead, its maternal grandmother applied to be appointed guardian of its person and estate. On the hearing it appeared that petitioner was living in one of the infant’s houses and had but little property of her own. The surrogate appointed petitioner guardian of the person of the infant, and a trust company guardian of the estate. Held, no error.

Appeal from an order of the surrogate appointing a trust company as guardian.

Hellie May Brien is an infant of the age of eleven years, whose father and mother are both dead. Her father, Timothy Brien, died in 1884, leaving a will in which he appointed his wife, Almira Brien, and his friend, David Morrison, executors and trus

p. 1000

tees of the estate, as well as guardians of his daughter. Almira Brien, the mother, died in May, 1890, intestate. Mr. Morrison never qualified as guardian and has declined to act. On the death of the mother, the infant having no guardian, the maternal grandmother, Mary A. Beebe, petitioned the surrogate to be appointed guardian of the child’s person and estate. Objections were filed by Mrs. Anna Yan Ness, the infant’s aunt, on behalf of herself and other relatives, the objectors asking specifically for the appointment of a trust company as guardian of the estate. The surrogate referred the matter to his assistant to take proofs and on the proofs so taken appointed the petitioner, Mrs. Beebe, as guardian of the person and the State Trust Company as guardian of the estate.

Appellant contends that by our Eevised Statutes the grandmother became a general guardian, with the rights, powers and duties of a guardian in socage, and that the surrogate had no power to Temove the petitioner under the application as presented. The most he could have done was a denial of her motion, and to leave her where she was before she applied to him for additional relief.

J. G. Flammer, for app’lt; F. 8. Bangs, for resp’t.

An examination of the papers seems to show that the action of the surrogate was eminently proper. Whatever the rights of the petitioner were, as guardian, in the absence of an appointment, they ceased upon such appointment. The appellant asked for the appointment of a guardian, and the surrogate, upon ascertaining the relations of the petitioner to the property of the infant, refused to appoint her, but did appoint a trust company. We see no reason for interfering with this action. The petitioner had interests antagonistic to those of the infant. She was living in one of the houses of the infant, had but little property of her own, and evidently had hopes of being partially supported out of the property of the infant.

This condition of affairs would undoubtedly have led to grave complications had she been appointed guardian, which should be avoided if possible.

The order should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.