Genet v. Tallmadge

1 Johns. Ch. 561, 1815 N.Y. LEXIS 182, 1815 N.Y. Misc. LEXIS 21

Opinion

The Chancellor.

The petition relating to the proceeds of the distributive share of the personal estate of George Clinton, deceased, ought to be granted, on further security being given so as to cover those proceeds. I have had occasion,

* already, to observe, on the subject of this very estate, that the guardian was the proper person to be intrusted with these proceeds, on giving the requisite securitj. But it is a fact of public notoriety, for it has been declared by one of the former sureties himself, in the public prints, that there has been a failure of one of the sureties already taken, and who stood bound in the sum of 13,500 dollars for the guardian’s fidelity. I must, therefore, require the deficiency of that security to be supplied, as well as the further security to be given, before I can permit any more moneys belonging to the infants to pass into the guardian’s hands.

But, in respect to the other petition, in which the guardian asks for the proceeds of the real estate of the infants, sold by the commissioners, the claim stands upon very dififerent grounds. It is not the general policy of the law that any guardian should have it in his power, under any circumstances, to dissipate the real estate of his ward. The law never allows him any further control than over the rents and profits. The act of the 24th of March, 1815, authorizing the Chancellor to direct, in certain cases, a sale of the real estate of infants, has taken special care that the investment and disposition of those proceeds shall be under the direction of this court, so as to secure the same to the infant. The private act under which the commissioners sold, in the present case, has not made any specific provision touching the proceeds, except, generally, that they should be divided among the heirs according to their respective rights and interests therein. As far, then, as the interest of the minors is concerned, the disposition of the proceeds necessarily devolves upon this court; and the most prudent course is to follow the provision of the other act, and to make some order, under the control and discretion of this court, in respect to the disposition and investment of these proceeds. It is well understood, that the moneys, which are the object of this petition, are not wanted for the immediate education and ■ maintenance of the infants, and the investment of them in public stock, drawing a punctual and certain interest, and r „ capable, at any time, of being converted into cash, to be as safe and judicious an investment as could at present be made. I see no good reason why these moneys should not remain subject to the investment already prescribed by the order of the court, and the petitioner has not suggested any other advantageous disposition of them.

I shall, accordingly, deny the prayer of this last petition, and make the following order in respect to the first:

“ Ordered, that it be referred to one of the masters of this court, residing in the city of Nem-York, to inquire, ascertain and report the market value, in cash, of the Manhattan Company stock, and Phcenix Insurance stock, and of the nominal value or amount on the face of the Turnpike stock, mentioned or referred to in the above petition ; and that he further ascertain and report, on the application of the above petitioner, what person or persons would, in the judgment of the master, be competent security, and who are willing to be security, by a bond in the penalty of such sum as 15,000 dollars, and the stock so ascertained as aforesaid shall jointly amount to ; and with the usual condition for the faithful performance, by the petitioner, as guardian to his infant children, of his said trust, and to account when required. And that the said master further inquire, ascertain, and report, on the like application, on the competency of further security to be offered by the petitioner for the like purpose, in the penalty of 13,500 dollars, to supply and meet the deficiency of the former security, heretofore given by the petitioner to that amount, and which hath since proved to be insolvent; and that he report with all convenient speed ; and all further directions are reserved until the coming in of that report.”

N. B. The security being offered, and its amount and competency ascertained by Jeremiah I. Drake, the master, it was ordered, on the 8th of November, 1815, that, on filing therbonds, &c., the proceeds of the distributive share of the personal estate, as in the petition first mentioned, be paid to E. C. Genet, the guardian.

Ante, p. 3. S. C.