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See notes to eg 2802 and 2688, ante. Quackenboss v. Southwick, 41 N. Y. 117.
§ 2820. Application of this title. The provisions of this title apply to a trust created by the will of a resi. dent of the State, or relating to real property, situated within the State, without regard to the residence of the trustee, or the time of the execution of the will.
See note to % 2802, ante.
Provisions relating to a guardian.
ARTICLE 1. Appointment, removal, and resignation of a general guardian,
2. Supervision and control of a general guardian. Settlement of
ARTICLE FIRST. APPOINTMENT, REMOVAL, AND RESIGNATION OF A GEN
SEC. 2821. Power of court to appoint guardians.
2822. Petition for appointment, by infant over fourteen.
2811. Application of the last section to former guardians. 3 2821. Power of court to appoint guardians. The surrogate's court has the like power and authority to appoint a general guardian, of the person or of the property, or both, of an infant, which the chancellor had, on the thirty-first day of December, eighteen hun.
dred and forty-six. It has also power and authority to appoint a general guardian, of the person or of the property, or both, of an infant whose father or mother is living, and to appoint a general guardian, of the property only, of an infant married woman. Such power and authority must be exercised in like manner as they were exercised by the court of chancery, subject to the provisions of this act. Tlie same person may be appointed guardian of an infant in both capacities; or the guardianship of the person and of the property may be committed to different persons.
2 R. S. 151, 26 (2 Edm. 157); L. 1870, ch. 341 (7 Edm. 716); L. 1871, ch, 703 (9 Edm. 132). People ex rel. Kearney, 31 Barb. 430; 19 How. 493; Kearney v. Brooklyn Ind. School, 1 Redf. 292; Ex parte Harbeck, 16 Abb. N.S. 214; Ex parte Dawson, 3 Brad. 130; 8 2850, post; Williams v. Storrs, 6 Johns. Ch. 333; Genet v. Tailmadge, I id. 3; Byrne v. Van Hoesen, 5 Johns. 66; Iloimes v. Seely, 17 Wend. 75; Jackson v. Sears, 10 Johns. 435; Thacher v. Ilenderson, 63 Barb. 271; Emerson v. Spicer, 46 N. Y. 594; 55 Barb. 428; 38 How. 114; Sylvester v. Ralston, 31 Barb, 286; see Fonda v. Van llorne, 15 Wend, 631; Putnam v. Ritchie, 6 Paige, 390; Field v. Schiefelin, 7 Johns. Ch.150; Otis v. Thompson, Hill & Denio's Supp. 131 ; Combs v. Jackson, 2 Wend. 153; Morehouse v. Cooke, liopk. 226; In re Hubbard, 10 Week. Dig. 482.
§ 2822. Petition for appointment, by infant over fourteen.-In either of the following cases, an infant of the age of fourteen years or upwards, may present, to the surrogate's court of the county in which he resides; or, if he is not a resident of the State, to the surrogate's court of the county in which any of his property, real or personal, is situated; a written petition, duly verified, setting forth the facts upon which the jurisdiction of the court depends, and praying for a decree appointing a general guardian, either of his person, or of his property, or both, as the case requires; and, if necessary, that the persons, entitled by law to be cited upon such an application, may be cited to show cause, why such a decree should not be made :
1. Where such a general guardian has not been duly appointed, either by a court of competent jurisdiction of the State, or by the will or deed of his father or mother, admitted to probate or authenticated, and recorded, as prescribed in section 2851 of this act.
2. Where a general guardian so appointed has died, become incompetent or disqualified ; or refuses to act; or has been removed ; or where his term of office has expired.
Where the petitioner is a non-resident married woman,
and the petition relates to personal property only, it must affirmatively show that the property is not subject to the control or disposition of her husband, by the law of the petitioner's residence.
2 R. S. 150, 84 (2 Edm. 157); L. 1870, ch. 59 (7 Edm. 589); L. 1871, ch. 82 (9 Edm. 58). Ex parte Bartlett, 4 Brad. 221.
$ 2823. Contents of petition; citation.- A petition, presented as prescribed in the last section, must also state whether or not the father and mother of the peti. tioner are known to be living. If either of them is known to be living, and the petition does not pray that the father, or, if he is dead, that the mother, may be appointed the general guardian, it must set forth the circumstances which render the appointment of another person expedient; and must pray that the father, or, if he is dead, that the mother, of the petitioner may be cited to show cause, why the decree should not be made. A citation, issued to the father of the peti. tioner, must be served at least ten days before it is returnable. Where the case is within subdivision second of the last section, the petition must pray that the person formerly appointed general guardian may be cited, unless it is shown that he is dead. The surrogate must inquire, and ascertain as far as practicable, what relatives of the infant reside in his county ; and he may, in his discretion, cite any relative or class of relatives of the infant, residing in that county or elsewhere, to show cause why the prayer of the petition should not be granted.
New ; L. 1870, ch. 301 (7 Edm. 716). People ex rel, v. Wilcox, 22 Barb. 178; s. C., 14 N. Y. 575; Kellinger v. Roe, 7 Paige, 362; Cozine v. lIorn, 1 Brad. 143; Ex parte Dawson, 3 id. 130.
$ 2824. Id. ; where petitioner is a married woman.The last section applies, where the petitioner is a married woman ; except that her husband must also be cited, and that the surrogate may, in his discretion, make a decree, appointing a guardian of her property, without citing her father or her mother, New.
§ 2825. Appointment of guardian.— Upon the re. turn of the citation, the surrogate must make such a decree in the premises, as justice requires. Tie may, in his discretion, lear allegations and proofs from a person
not a party. Where a citation is not issued, the surrogate must, upon the presentation of the petition, in. quire into the circumstances. For the purpose of such an inquiry, or of an inquiry into the amount of security to be required of the guardian, he may issue a subpæna, requiring any person to attend before him, to testify respecting any matter involved therein. If he is satis. fied that the allegations of the petition are true in fact, and that the interests of the infant will be promoted by the appointment of a general guardian, either of his person or of his property, he must make a decree accordingly, except that a guardian of the person of % married woman shall not be appointed. In a proper case, he may appoint a general guardian in one capacity, without a citation and issue a citation, to show cause against the appointment of a general guardian. in the other capacity.
New in form; see 2 R. S. 151, 86 (? Edm. 157). Morehouse v. Cooke, Hopk. 226: Underhill v. Dennis, 9 Paige, 202; Kellinger v. Roe, 7 id. 362; Cozine v. Horn, 1 Bradf. 143; Ex parte Dawson, 3 id. 130; People *. Wil. cox, 22 Barb. 178.
$ 2826. Guardian to be nominated by infant.- A guardian, appointed upon the application of an infant of the age of fourteen years, or upwards, as prescribed in this article, must be nominated by the infant, subject to the approval of the surrogate, 2 R. S. 150, 4 (2 Edm. 157). Sherman v. Ballou, 8 Cow. 304.
§ 2827. Appointment of temporary guardian for infant under fourteen.- A relative of an infant under fourteen years of age, or any other person in behalf of such an infant, may present, to the surrogate's court of the county in which the infant resides; or, if he is not a resident of the State, to the surrogate's court of the county in which any of the infant's property, real or personal, is situated; a written petition, duly verified, setting forth the facts, upon which the jurisdiction of the court depends, and praying for a decree appointing a guardian of the person, or of the property, or both, of the infant, to serve until the infant attains the age of fourteen years, and a successor to the guardian is appointed. The cases in which such a guardian may be appointed, the contents of the petition, and the proceed. ings thereupon, are the same, as prescribed in the fore
going sections of this article, with respect to the appointment of a general guardian, upon the petition of an infant of the age of fourteen years or upwards ; except that the surrogate must nominate, as well as appoint, the temporary guardian.
2 R. S. 151, 8 5 (2 Edm. 157). Underhill v. Dennis, 9 Paige, 202 ; Whiteo. Pomeroy, 7 Barb. 640; Ex parte Dawson, 3 Bradf. 130; Brown v. Lynch, 2 id. 214; Matter of Pierce, 12 How. 532; Matter of Hughes, 1 Tuck. 38; Dutton v. Dutton, 8 How. 99; Matter of Pierce, 12 id. 532; Kolley v. Chamberlai 1 Redf.333; Foster v. 3 Bradf.409; Bennett v, Byrne 2 Barb.Ch. 216; Cozine v. Horn, 1 Bradf. 143; Morehouse v. Cook, Hopk. 226 ; Rickford's Case, 15 Abb. N. S. 6.
§ 2828. Term of office of temporary guardian.The term of office of a guardian, appointed as prescribed in the last section, expires when the infant attains the age of fourteen years. But after the infant attains that age, the person so appointed continues to retain all the powers and authority, and is subject to all the duties and liabilities, of a guardian of the person, or of the property, or both, pursuant to his letters ; until his successor is appointed and has qualified, or until his letters are revoked, or some other cause, by the decree of the surrogate's court; and his sureties are responsible accordingly.
Id., 10. Matter of Demming, 10 Johns. 232, 483; Brick's Estate, 15 Abb. Pr. 12, surr, ct. ; Matter of Nicoll, 1 Johns. Ch. 25; Matter of Dyer, 5 Paige, 534.
§ 2829. Inquiry as to value of property.- Where a general guardian of the property of an infant is appointed, as prescribed in this article, the surrogate must inquire into the infant's circumstances, and must ascer tain, as nearly as practicable, the value of his personal property, and of the rents and profits of his rea property. Id., part of 8 6. Underhill v, Dennis, 9 Paige, 203.
$ 2830. (Amended, 1881.] Qualification of guardian of property. - Before letters of guardianship of an infant's property are issued by the surrogate's court, the person appointed must, besides taking an official oath, as prescribed by law, execute to the infant, and file with the surrogate, his bond, with at least two sureties, in a penalty, fixed by the surrogate, not less than twice the value of the personal property, and of the rents and profits of the real property ; conditioned that the guardian will, in all things, faithfully discharge the trust reposed In him, and obey all lawful directions of the surrogate touching