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Matter of Budlong, 100 N. Y. 203, 3 N. E. 334; and Matter of Ruppaner, 7 App. Div. 11; 39 Supp. 763; were probate proceedings and not proceedings for an executor's accounting.

Frank D. Sturges, for respondent.

Powers of Surrogate's Courts depend on the Statute.

Matter of Randall, 152 N. Y. 508; 46 N. E. 945; Matter of Underhill, 117 N. Y. 471, 22 N. E. 1120; Riggs v. Cragg, 89 N. Y. 479.

Officers and special guardians are limited to statutory costs.

Matter of Simpson, 26 Hun, 461; Matter of Holden, 126 N. Y. 589; 27 N. E. 1063; Matter of Budlong, 100 N. Y. 203; 3 N. E. 334; Matter of Ruppaner, 7 App. Div. 11; 39 Supp. 763; Matter of Dodge, 10 Hun, 443; Matter of Tracy, 18 Abb. N. C. 242; Matter of Ludlow, N. Y. Law J. July 27, 1899; Matter of Weston, 91 N.Y. 501, 514; Matter of Meeker, 9 Daly, 556.

The rule may be otherwise in actions, as distinguished from special proceedings. Roberts v. N. Y. Elev. R. R. Co., 12 Misc. 345; 67 St. Rep. 386; 33 Supp. 685, S. C. 155 N. Y. 31; 49 N. E. 262.

VANN, J. In a proceeding instituted in surrogate's court for an accounting by executors and trustees, the surrogate, upon his own motion, appointed the appellant special guardian of two infants, each under the age of 14, who had vested interests in a part of the estate, although the ultimate enjoyment thereof by them was contingent upon their surviving the life tenant. The estate was large, and the entire burden of the accounting was cast upon the special guardian, who devoted many days to the litigation, and rendered services of much value, not only to the infants, but to the general estate. Upon the settlement of the decree the appellant applied to the surrogate "for the award to him out of the estate of the above-named decedent of a compensation for his services in addition to and apart from the costs authorized by section 2561 of the Code of Civil Procedure" but the application was denied "on the ground that the surrogate is without power to award such compensation out of the estate generally." An appeal, taken by the special guardian from that portion of the decree affecting his personal interests, resulted in an affirmance by the appellate division, which, however, allowed an appeal to this court, and certified the following questions for review: "(1) Does the surrogate's court possess power

Court of Appeals.

to award to a special guardian, appointed on its own motion in proceedings for the judicial settlement of an executor's accounts, any compensation for his services in addition to and apart from the statutory costs allowed by sections 2557-2561 of the Code of Civil Procedure? (2) If the surrogate's court has such power, then can it direct that any compensation which it may so award, be paid out of the general estate of the decedent, where the infants represented by such guardian have a vested interest therein, subject, however, to be divested by death prior to decease of life tenant?"

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As the only question before the surrogate, and the only one decided either by him or by the appellate division, was whether compensation, aside from taxable costs, could be made to the appellant out of the estate of the decedent, under the rule governing the certification of questions to this court for decision, we must limit our answers to the questions as raised by the facts disclosed by the record, which exclude any inquiry as to the power to allow compensation out of the estate of the infants. Grannan v. Westchester Racing Association, 153 N. Y. 449; 47 N. E. 896; Baxter v. McDonnell, 154 N. Y. 432-436; 48 N. E. 816. No part of the infant's estate was before the surrogate, and there was neither property nor money absolutely belonging to them out of which he could direct payment to be made. They had no present right to any portion of the estate of the decedent. They might never have any such right; and, if it should finally come to them, it might be only after the lapse of many years. No application was made by the special guardian for compensation out of the infant's estate, and no question relating to that subject was presented to the courts below. The learned appellate division, therefore, had no power to certify, and we have no power to decide, any questions except such as relate to the authority of the surrogate to allow compensation out of the estate of the decedent and hence we are compelled to construe the first question sent to us to have that meaning, notwithstanding the general terms used. We have reached the conclusion that a surrogate's court has no power to award a special guardian, even

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when appointed on its own motion to represent an infant party to an executor's accounting, any compensation for his services, out of the general estate of the decedent, in excess of the costs authorized by Code Civ. Pro. §§ 2557-2561. Matter of Budlong, 100 N. Y. 203–205; 3 N. E. 334; Matter of Holden, 126 N. Y. 589, 38 St. Rep. 504; 27 N. E. 1063. The subject was so thoroughly considered by the court below that we regard further discussion as unnecessary, and we should have based our decision upon the opinion of the appellate division but for the necessity of so construing the first question certified as to exclude the abstract proposition relating to the power of the surrogate to compensate the special guardian out of the infant's own property. The order should be affirmed, but, under the circumstances, without costs, and the first question, when limited as above indicated, answered in the negative. As the second question is contingent only, this conclusion makes it impossible to answer it. All concur. All concur. Order affirmed.

VON BECK v. THOMSEN.

[44 App. Div. 873; 94 St. Rep. 1094; 60 Supp. 1094.]

(Supreme Court, Appellate Division, First Department. November 17, 1899.)

1. ADOPTION-CONSENT OF PARENTS-NECESSITY.

Adoption Laws 1873, c. 830, § 11, declares that, whenever a child has been abandoned, the person maintaining it may adopt it, without the consent

NOTE.-ADOPTION OF CHILDREN.

a. Statutes.

b. The relation-Evidence.
c. Rights of parties.

a. Statutes.

The first statute regulating the adoption of children was Chapter 830 of the Laws of 1873. Section 10 of that Act was amended by Chapter 703 of VII. N. Y. A. C.

3

Appellate Division.

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of its parent, within six months from the time such person obtained custody of the child. Held that, since the limitation in such section only applied where the child was abandoned after its enactment, a person maintaining a child abandoned previous to the adoption of the statute was entitled to adopt it without the consent of the parent, though proceedings therefor were not begun within the time limited.

2. ADOPTION-OBJECTIONS TO PROCEEDINGS.-PRESENCE OF PARTIES.

An objection to a proceeding for the adoption of a child that the agreements for its adoption were not executed in the presence of the judge before whom the proceedings were had is immaterial, where, by the order entered, the judge himself certifies that the persons adopting the child appeared before him, that the child was present, and that such parties executed the necessary consents.

3. ADOPTION-RIGHTS OF ADOPTED CHILD-INHERITANCE—Trusts. Laws 1873, c. 830, as amended by Laws 1887, c. 703, prescribing the proceeding for adoption, declares (section 10) that a child when adopted shall have all the rights of the relation of parent and child, including the right of inheritance, except that, as to the limitation over of property in trust dependent on the foster parent dying without heirs, such child shall not be deemed to sustain such relation to such parent as to

ADOPTION OF CHILDREN,-continued.

the Laws of 1887 by giving the adopted child the right of inheritance from the adopted parent. Section 8 of the original act was amended by Chapter 485 of the Laws of 1888 by adding the provision whereby the appearance of the parent before the County Judge could be dispensed with in case such parent should not be, or reside, in the County, by filing a duly acknowledged and certified consent of such parent. Section 11 of the original act was amended by Chapter 58 of the Laws of 1889 by striking out the provision that the person adopting an abandoned child shall proceed under the provisions of the act within six months after assuming the maintenance of the child.

The entire subject of adoption was made a part of the Domestic Relations Law, Laws of 1896, Chapter 272, § 60-68. Section 64 of the Domestic Relations Law was amended by Chapter 408 of the laws of 1897 by adding the provision that upon the marriage of a surviving or foster parent, who consents that the person who thus becomes the step-father or step-mother of such child may adopt the same, such surviving or foster parent is not relieved of parental duties or deprived of parental rights.

The second paragraph of subdivision 2 of § 62 of the Domestic Relations Law was amended by chap. 498, Ll 1899 by striking out the words "or is located" after "resides" and by inserting the word "Country" before "State or County."

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defeat the rights of remainder-men. Held, that a policy directing payment to the wife of insured, and, on her death before insured, to her children, for their use, does not create a trust, within such exception, since on the death of the wife the surviving children took a vested interest in the policy, not as beneficiaries of a trust, but as the persons for whom the contract was made.

4. ADOPTION-RIGHT TO INSURANCE FOR BENEFIT OF CHILDREN.

Under Laws 1873, c. 830, §10, as amended by Laws 1887, c. 703, providing that a child, when adopted, shall sustain towards the person adopting it the relation of parent and child, and shall have all the rights of that relation, including that of inheritance, a child adopted after the issuance of a policy payable to its foster mother, and on her death to her children, is entitled to share with the other children on the happening of the contingency.

Submission on agreed facts of claim by Sylvia Von Beck against Hugo A. Thomsen and another to recover an interest in certain insurance. Judgment for plaintiff.

ADOPTION OF CHILDREN,-continued.

b. The relation—Evidence.

Adoption of children was unknown to the common law of England and exists in this country only by virtue of statute.

Matter of Thorne, 155 N. Y. 140; 49 N. E. 661.

The proceedings for adoption are not defective by reason of the failure of the County Judge to attest the signatures of the adoptors and a recital in the order of their appearance and signing before the County Judge is sufficient.

People v. Bloedel, 42 St. Rep. 453; 16 Supp. 837; Aff'g 20 St. Rep. 461; 4 Supp. 110.

Nor can the omission of the County Judge to attest the signatures of the adoptors be availed of by the mother of the child whose consent was properly attested.

Id.

The relation of adopted child is established although the indenture contemplates apprenticeship only till eighteen years of age, where the real purpose and intent is that the adoption reach beyond that age.

Simmons v. Burrell, 8 Misc. 388; 59 St. Rep. 554; 28 Supp. 625.

Where the adoption was by indenture which was silent as to the agreement to leave property to the adopted child parol evidence of such unwritten agreement is admissible.

Brantingham v. Huff, 43 App. Div. 414; 94 St. Rep. 157; 60 Supp. 157.

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