In re Monell — 46 N.Y. St. Rep. 693

Majority

p. 693

In the Matter of Mary Monell, Adm’rx.

(Supreme Court, General Term, First Department,

Filed June 3, 1892.)

Headnote

1. Guardian—Appointment of special—Not affected by appointment of general guardian.

Where the surrogate has once acquired jurisdiction to appoint a special guardian, such appointment is not revoked by the subsequent appointment of a general guardian.

2. Same—Notice—Code Orv. Pro., § 2631.

The provisions of § 2531 of the Code, in relation to notice of application for the appointment of a special guardian, have no application, where the surrogate makes such appointment on his own motion, but only to cases where some person other than the infant applies for such appointment.

Appeal from order of the surrogate denying motion to revoke the appointment of a special guardian.

T. Darlington, for app’lt; S. W. Fullerton, for resp’t.

The facts shown upon the record appear to be that the appellant, as administratrix, filed her account and vouchers in the surrogate’s office, and that the general guardian ■of the infants who were interested in the estate appeared and filed objections to the account. A reference was ordered based upon, the objections; and while such reference was in progress the letters of the general guardian were revoked at the request of the sureties upon his bond, and the surrogate immediately thereafter, upon his own motion, appointed a special guardian to protect the interests of the infant on the reference. Subsequently a new general guardian was appointed, and the administratrix moved for the revocation of the appointment of the special

p. 694

guardian, which was refused, and from the order thereupon entered this appeal is taken.

It is contended upon this appeal by the administratrix that the right of the general guardian to appear and protect the interest of the infant is given him by statute, and cannot be taken away until after a judicial investigation showing that the interests of the infant will suffer from the guardian being adverse or incompetent, or some other reason judicially ascertained, in which case the surrogate may appoint a special guardian, and that notice of the application for special guardian must be served upon the infant under § 2531 of the Code; and that under rule 10 of the surrogate’s court the fact whether the infant resides with his parent and approves the application or not must be stated.

It is difficult to see how the powers of the surrogate conferred upon him by statute can be limited by a rule made by himself; and, therefore, it is entirely immaterial what the requirements of the rule referred to may be. It can have no bearing whatever upon the validity of the order appealed from.

It seems to us that the surrogate was not only clearly right in making the appointment of a special guardian upon the removal of the general guardian, but he was in duty bound to do so in order that the rights of the infant may be protected upon this accounting. And there is no provision whatever in the Code which either nullifies .or makes of no effect such appointment of a special guardian merely because a general guardian is subsequently appointed.

It may be true that the general guardian has the right to appear upon the proceedings in progress; but that in no way conflicts with the rights of the special guardian.

In respect to the question of notice, the requirements, of § 2531 have no application whatever to this case, in which the surrogate, upon his own motion, makes the appointment of a special guardian, but only to those cases where somebody else other than the infant or the committee of an incompetent person applies for such appointment. By § 2530 authority is expressly given to the surrogate to appoint a special guardian where there is no general guardian. And as already seen, at the time of the appointment of this special guardian there was no general guardian, or any person to look after the interests of these infants. The surrogate once having acquired jurisdiction to appoint a special guardian, there is nothing in the statute which revokes such appointment simply because he grants the application for the appointment of a general guardian.

The order should be affirmed, with costs.

O’Brien and Barrett, JJ., concur.