In re the Guardianship of Patterson

New York Surrogate's Court

In re the Guardianship of Patterson

1 Pow. Surr. 3, 15 N.Y.S. 963, 39 N.Y. St. Rep. 849

DecidedJuly 15, 1891

StatusPublished

This text of 1 Pow. Surr. 3 (In re the Guardianship of Patterson) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Guardianship of Patterson, 1 Pow. Surr. 3, 15 N.Y.S. 963, 39 N.Y. St. Rep. 849 (N.Y. Super. Ct. 1891).

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Opinion

Coffin, S.

It is not discovered that the section of the Code cited by counsel has any bearing upon the power of the surrogate to make the desired order. It simply relates to the power to appoint a guardian, while the prayer of the petitioner is for an order to substitute a new bond (say $400) for one of a larger amount, filed on obtaining the letters, in the first instance, by the guardian already appointed.

By sections 2597, 2598, etc., of the Code, provision is made for the increase of the penalty of the bond of an executor, administrator or guardian, but none is found relating to the reduction of the penalty. It is claimed, however, that if the court has power to increase, it has power to diminish. But the first, as is seen, is given by statute, while none is conferred as to the latter. Nor can any good reason be assigned why the amount of the penalty of a. bond, based upon'ascertained facts as to the value of an estate, should be reduced. The fact that the estate or fund has been diminished by unavoidable losses, by the payment of debts or legacies, or payments on account of distributive shares, or other like causes, furnishes no ground for such reduction. To the extent of such losses and payments the liability on the bond would be diminished, and there would be [5]*5no reason to ask it. Were such power, as is here asked to be exercised, assumed by this court, probably similar applications would be very frequent and numerous.

The reason for this application, it is understood, is not for the benefit of the ward, but of the guardian. lie has to pay the Fidelity & Casualty Company, which is his surety, its charge for acting as such on the bond originally given. This does not concern the ward, for, as held by me in the case of Jenkins v. Shaffer, 6 Dem. 59, 19 N. Y. St. Rep. 900, the expense is personal to the guardian, and is not a proper item of charge against the ward’s estate. If this be so, and the guardian is unwilling to incur the expense, he should seek relief by resigning or in such other mode as he may be advised.

The prayer of the. application is denied.

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Coffin, S.

It is not discovered that the section of the Code cited by counsel has any bearing upon the power of the surrogate to make the desired order. It simply relates to the power to appoint a guardian, while the prayer of the petitioner is for an order to substitute a new bond (say $400) for one of a larger amount, filed on obtaining the letters, in the first instance, by the guardian already appointed.

By sections 2597, 2598, etc., of the Code, provision is made for the increase of the penalty of the bond of an executor, administrator or guardian, but none is found relating to the reduction of the penalty. It is claimed, however, that if the court has power to increase, it has power to diminish. But the first, as is seen, is given by statute, while none is conferred as to the latter. Nor can any good reason be assigned why the amount of the penalty of a. bond, based upon'ascertained facts as to the value of an estate, should be reduced. The fact that the estate or fund has been diminished by unavoidable losses, by the payment of debts or legacies, or payments on account of distributive shares, or other like causes, furnishes no ground for such reduction. To the extent of such losses and payments the liability on the bond would be diminished, and there would be [5]*5no reason to ask it. Were such power, as is here asked to be exercised, assumed by this court, probably similar applications would be very frequent and numerous.

The reason for this application, it is understood, is not for the benefit of the ward, but of the guardian. lie has to pay the Fidelity & Casualty Company, which is his surety, its charge for acting as such on the bond originally given. This does not concern the ward, for, as held by me in the case of Jenkins v. Shaffer, 6 Dem. 59, 19 N. Y. St. Rep. 900, the expense is personal to the guardian, and is not a proper item of charge against the ward’s estate. If this be so, and the guardian is unwilling to incur the expense, he should seek relief by resigning or in such other mode as he may be advised.

The prayer of the. application is denied.

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Bluebook (online)

1 Pow. Surr. 3, 15 N.Y.S. 963, 39 N.Y. St. Rep. 849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-guardianship-of-patterson-nysurct-1891.