CHAP. IV. rected, it might seem, that the creditor's only remedy after compelling the committee to file an inventory, would be to apply for a further order to compel the committee to sell, mortgage or lease for the payment of the debts set forth in the petition. In this case, the order on the committee might be enforced as is last directed, or the court might supersede the commission and direct a new committee, or take such other order as the necessity of the case might demand. Prior to the statute, where the real was ordered to be sold at the instance of a creditor, the sale was to be conducted under the directions of the court by a master, and the committee and the terms of sale, &c. reported to the court for its approbation, before conveyance executed.(10) In the third case the court will in like manner compel the committee on hearing of all parties interested, to execute such conveyance or assurance of the trust or mortgaged property held for others, and direct the mode and manner in which the same shall be made.(11) 26. In the fourth case the committee may in like manner be compelled to a specific performance of the bargain, contract or agreement, and under like special directions execute all necessary conveyances and acts for the purpose.(12) The fifth case may be by order to show cause, reference, hearing of all parties, and in the mean time the powers of the committee may by temporary order be suspended and the order if violated, be enforced by attachment. The powers of chancery in this case are incidental and necessary to its jurisdiction over the subject matter, and will be regulated to meet the exigency. In By lunatic, the 6th case, the lunatic, &c, if restored to his right mind would be entitled to his estate. (13) On petition by the lunatic, &c. to supersede the commission, or discharge the committee on the ground of restored sanity, the court will either order a reference to take proof as to the allegations, to examine the lunatic if the master think fit, and report the proof and his opinion; or direct the lunatic to attend in court to be examined by the chancellor. It is also in sound discretion to allow him to traverse the inquisition, or try the question on a feigned issue. And &c. (10) 2 J. Ch 400.242. (12) ib. § 22. (13) 2 R. S. ib (24. where the lunacy was satisfactorily established in the CHAP. IV. first instance, and the opinion of the court remained, after repeated applications for a discharge of the committee, unchanged, trial of the question was directed to be at the expense of the lunatic or his friends, and not out of his estate, which consisted of personal, acquired by the industry of his wife, and barely sufficient to maintain her, her children and husband. (13) 3. GENERAL GUARDIAN. 27. sons and es § 28. Though surrogates had concurrent power with this Petitions for court in the appointment of general guardians, they had appointment none over them as trustees.(1) Now surrogates may guardians for of general appoint, remove, appoint anew, and call them to account, the custody subject to the appellate jurisdiction of chancery.(2) [see of the perch. 2. $64.] For the purpose of having a general guar- tates of indian appointed in this court, the infant if of the age of fants. fourteen years or upwards, or some relative or friend if the infant is under fourteen, may present a petition to the court, stating the age and residence of the infant, Petition. by whom, and the name and residence of the person proposed or nom- what it coninated as guardian, the relationship, if any, which such tains. person bears to the infant, and the nature, situation and value of the infant's estate. (3) The petition(4) in other respects is governed by the rules laid down under the head of petition, in general. [ch. 2. §5, &c.] Where the amount of property is excessively small, the court may make an order for appointment without reference. Thus in England, where two infant orphans had but £15 income, on presenting petition and on motion, a guardian was ordered, without reference, to save expense.(5) Previous to presenting the petition to the court, if the § 29. infant reside in the city of New-York, the petitioner must Proceedings apply to the taxing or injunction master in that city; if prior to the in other county in the state, to the master nearest to the petition; presenting of any preferred to a (5) 1 Russ. 478. vid. 1 Jac. and 15 CHAP. IV. the residence of the infant; or if the infant reside out of the state, to any taxing or injunction master, who must by inspection or otherwise ascertain the age of the infant, and if of the age of fourteen years or upwards the master must examine him asto his voluntary nomination of a suitable and proper person as guardian; if under fourteen, the master must ascertain who is entitled to the guardianship, and must name a competent and proper person as guardian. The master must also ascertain the amount of the personal property and the gross amount or value of the rents and profits of the real estate of the infant, during his minority, and also ascertain the sufficiency of the security offered by the guardian.(6) In making such inquiries, the master, in his discretion, may direct notice to be given to such of the relatives of the infant as he may think proper, to appear before him and be heard in relation to the application; it shall be the duty of the master in all cases to see that the rights of the infant are properly guarded and protected, and he may require the attendance of such witnesses before him to give testimony on the subject of the application as he may think necessary or proper. The master must annex to the petition a report containing the particulars mentioned in the preceding rule, specifying what relatives or friends of the infant have been notified to appear before him, if any, and if none have been notified, stating the cause thereof. The report must also state that each of the persons proposed is worth the requisite amount, over and above all his debts, or that the real estate proposed to be given as security, is of the value required by the rules of the court.(7) § 30. & order there On presenting to the court the petition with the masPresenting ter's report annexed, an order may be obtained for the the petition, appointment of the guardian; or the court, in its discreon; order to tion, may direct a further reference, and direct what reappoint guar- latives or friends of the infant shall have notice to attend on the same. The appointment shall not be valid until the requisite security is given and filed in the proper office, with the certificate of the master endorsed thereon, dian. (6) R. 151. See ante ch. 2 § 26-7. 367-8. forms; state of facts and 37. affidavit of truth. ib. affidavit of sureties and report of mas ter. §31. or given by gen guar approving of the form and manner of the execution there- CHAP. IV. of.(8) If the sureties as reported be approved, and no further reference ordered, the report of the master will on motion be confirmed, and an order entered [ch. 2 § 33.] for the appointment of the guardian, upon his executing the requisite security before a master. A copy of the order is then obtained and served [ch. 2, § 35-6.] on the master, who proceeds to take and approve the bond. The security to be given by the general guardian of an Bond, infant, must be a bond in a penalty of double the amount security to be of the personal estate of his ward and of the gross eral amount or value of the rents and profits of the real es- dians. tate during his minority, together with at least two sufficient sureties, each of whom must be worth the amount specified in the penalty of the bond over and above all debts; or instead of personal security the guardian may give security by way of mortgage on unincumbered real property, of the value of the penalty of his own bond only. But the court, in its discretion, may vary the security where, from special circumstances, it may be found for the interest of the infant, and may direct the principal of the estate, or any part thereof, to be invested in public stocks, or on bond and mortgage in the name of the register, assistant register or clerk,. for the benefit of the infant, and that the interest or income thereof only be received by the guardian.(9) The bond with the certificate of approval endorsed is then filed in the office of the register, assistant register or clerk, [ch. 2. § 33-4.] whose duty it is at the time of the appointment to deliver to the guardian a certified copy of certain rules, regulating the guardian's duty, as to filing an inventory and reporting,(10) and the duty of the register, &c. upon neglect of the guardian,(11) being the same rules, required to be delivered to committees and receivers. [ante $ 17.] dians and lia § 32. Every guardian in soccage, and every general guar- Duties of all dian, whether testamentary or appointed, shall safely generalguarkeep the things that he may have in his custody belong- bility in trebing to his ward, and the inheritance of his ward, not ledamages f make or suffer any waste, sale or destruction of such waste. CHAP. III. things or of such inheritance, but keep up and sustain the houses, gardens and other appurtenances to the lands of his ward, by and with the issues and profits thereof, or with such other monies belonging to his ward, as shall be in his hands; and deliver the same to his ward when he comes to his full age, in as good order and condition, at least, as such guardian received the same, inevitable decay and injury only excepted; and shall answer to his ward for the issues and profits of real estate, received by him, by a lawful account, (1) If any guardian shall make or suffer any waste, sale or destruction of the inheritance of his ward, he shall lose the custody of the same, and of such ward, and shall forfeit to the ward thrice the sum at which the damages shall be taxed by Powers & re the jury.(3) The ordinary bond of a general guardian thereon: as. does not embrace the receipt and disposition of money to proceeds of from sale of land, as where partition and sale had been sale by de- made.(4) But now the general guardian cannot receive strictions cree. Do. of sale on any part of the proceeds of a sale of real property belonging to such infant sold under a decree or order of the court, until the guardian has given such further security for the faithful discharge of his trust as the court may direct.(5) No monies arising from the sale of the real estate of a mortgage or an infant on a mortgage or partition sale, or under any partition, decree or order of the court can be paid over to such general guardian, excepting so much thereof, or the interest or income from time to time, as may be necessary for his support or maintenance, unless such guardian has previously given sufficient security on unincumbered real estate to account to the infant for the same in the usual form.(6) It had been previously decided that where one of the sureties becomes insolvent, the court would refuse to order money which had been paid into court to be paid over to the guardian, until further security.(7) But the proceeds of property not thus placed under the control of the court, might have been paid over to the general guardian where his security was very inadequate. These restrictions therefore on their powers and the precautions adopted to scrutinize and supervise their trust, are wise (1) 2 R. S. 153. § 20. & ib, 333-4, (4) 1 Hopk. 512. (5) R. 147. see 1 Hopk. 48. (7) 1 J. Ch. 561. |