The Chancellor.
I do not think the appointment of the guardian in this case was absolutely void, upon the ground of the relationship of the surrogate to the person appointed guardian. But it was a case in which the surrogate might very properly have declined acting, on that [206]*206ground, and have directed the application to be made to the chancellor or vice chancellor having jurisdiction of the case. The surrogate being a mere statute officer, it is unquestionably within the power of the legislature to prohibit him from acting in any particular case. This court, however, has decided that the statute which declares that no judge of any court can sit, as such, in any cause in which he would be excluded from being a juror, by reason of affinity or consanguinity to either of the parties, does not apply to a case where the relative of the judge has no personal interest in the subject matter of the litigation, or in the decision to be made; as in the appointment of a relative of the judge to be the committee of a lunatic, &c. (In the matter of Hopper, 5 Paige’s Rep. 489.) It is unnecessary, therefore, to examine the question, whether this court can act upon the petition of appeal as an original application for the appointment of a guardian for this infant ; upon the ground that the appointment by the surrogate was absolutely void for want of jurisdiction to make it, and that an appeal was unnecessary.
I am satisfied, however, that the decision and appointment by the surrogate was erroneous, whether considered in reference to the merits of the case as stated in the petition of appeal, or to the technical regularity of the proceedings ; upon the petition of the respondent, presented to the surrogate in August, 1840, after the decision in favor of the paternal uncle had been in fact made upon the verbal and informal application of the appellant.
Where the infant himself does not apply for the appointment of a guardian, but the application is made by some relative or other person in behalf of the infant on account of his being under the age of fourteen, the statute is imperative, that the surrogate shall assign a day for the hearing of the application, and shall direct such notice of the hearing to be given to the relatives of the minor residing in the county as he shall, upon due inquiry, deem reasonable. (2 R. S. 151, § 5.) This provision, as originally enacted in the revised statutes, seems to have borne the [207]*207construction that all the relatives of the infant, either by affinity or consanguinity, if they resided in the county, were to be notified of the time and place appointed for the hearing of the application ; and that the surrogate was only to decide upon the reasonableness of the notice. The act of 1837, concerning the proof of wills, &c. has modified the provisions of the revised statutes in this- respect, by declaring that the notice shall be required to be served on such relatives only of the minor as the surrogate shall direct. (Laws of 1837, p. 532, § 44.) This modification, however, does not relieve the surrogate from the duty of making the inquiry contemplated by the revised statutes ; for the purpose of ascertaining who are the relatives of the infant residing in the county, and of directing notice of the application to be given to such and so many of them as may be deemed reasonable for the purpose of having the rights of the infant properly attended to upon the application. Where the application is made by one who is not nearly related to the infant either by affinity or consanguinity, it is the duty therefore of the surrogate to inquire and ascertain whether the infant has any such relatives in the county who are of sufficient age and capacity, to protect the rights and interests of the minor in the selection of a proper guardian, and in obtaining sufficient security from such guardian in reference to the nature and value of the infant’s property. And if the nearest relatives of the infant do not-join in the application, or give their consent to the same, the surrogate should direct notice to be given to such and so many of them, who are residing in the county, as he may deem necessary to protect the infant’s interest and rights on such application. He should enter his decision on that subject in the minutes of his proceedings, and should require the applicant to furnish the evidence of the service of such notice before he proceeds to make the appointment. So where the application is made by a relative of the infant, the surrogate should make the requisite inquiries, and ascertain whether there are any other relatives related to the infant in the same degree, or [208]*208more nearly ; and direct notice of the hearing of the application to be given accordingly.
Here, if the return of the surrogate is to be received as the only evidence of what took place before him, as the respondent’s counsel insists it should be, it is evident the surrogate made no inquiries, in the form required by law, to ascertain whether the minor had any other relatives of the same or of a nearer degree of relationship than the applicant. For the petition is entirely silent on that subject; and the rest of the return of the surrogate, which he- states is a correct transcript of all the records and proceedings in his office on this application, contains no evidence that the petitioner or any other person was sworn as to the existence of other relatives of the infant, in that county or elsewhere. And where the surrogate errs, either by neglecting to make the proper inquiries as to who are the relatives of the infant, or in not directing notice to be given to such of the relatives as in the exercise of a sound discretion he should have directed to be notified of the time and place of hearing the application, the appellate court may reverse his decision, and may set aside the appointment of the guardian upon that ground.
Again ; if we are at liberty to look out of the transcript, to the petition of appeal and the answer thereto, for the purpose of connecting the original application of the appellant with this subsequent appointment, so as to render it proper for the surrogate to dispense writh any further notice to the maternal relatives of the infant, who all lived together in the same family, I think there is good reason to believe the surrogate has acted upon an erroneous principle, in supposing the paternal uncle was entitled to a preference over the maternal relatives standing in the same degree of relationship to the infant. The fact that the real estate, which constituted all or nearly all of the infant’s property, came to him by descent from his father, and therefore would go to his paternal relations in case of his death under age and without issue, affords no grounds whatever for giving a preference to the paternal [209]*209relatives in the appointment of the guardian. On the other hand the expressed wishes of both of the deceased parents of the infant, that he should be brought up a farmer, under the care or guardianship of the maternal uncle, in whose family he had lived four or five years, was a circumstance which certainly should not have been overlooked by the surrogate in deciding upon the relative claims of the parties to the guardianship.
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The Chancellor.
I do not think the appointment of the guardian in this case was absolutely void, upon the ground of the relationship of the surrogate to the person appointed guardian. But it was a case in which the surrogate might very properly have declined acting, on that [206]*206ground, and have directed the application to be made to the chancellor or vice chancellor having jurisdiction of the case. The surrogate being a mere statute officer, it is unquestionably within the power of the legislature to prohibit him from acting in any particular case. This court, however, has decided that the statute which declares that no judge of any court can sit, as such, in any cause in which he would be excluded from being a juror, by reason of affinity or consanguinity to either of the parties, does not apply to a case where the relative of the judge has no personal interest in the subject matter of the litigation, or in the decision to be made; as in the appointment of a relative of the judge to be the committee of a lunatic, &c. (In the matter of Hopper, 5 Paige’s Rep. 489.) It is unnecessary, therefore, to examine the question, whether this court can act upon the petition of appeal as an original application for the appointment of a guardian for this infant ; upon the ground that the appointment by the surrogate was absolutely void for want of jurisdiction to make it, and that an appeal was unnecessary.
I am satisfied, however, that the decision and appointment by the surrogate was erroneous, whether considered in reference to the merits of the case as stated in the petition of appeal, or to the technical regularity of the proceedings ; upon the petition of the respondent, presented to the surrogate in August, 1840, after the decision in favor of the paternal uncle had been in fact made upon the verbal and informal application of the appellant.
Where the infant himself does not apply for the appointment of a guardian, but the application is made by some relative or other person in behalf of the infant on account of his being under the age of fourteen, the statute is imperative, that the surrogate shall assign a day for the hearing of the application, and shall direct such notice of the hearing to be given to the relatives of the minor residing in the county as he shall, upon due inquiry, deem reasonable. (2 R. S. 151, § 5.) This provision, as originally enacted in the revised statutes, seems to have borne the [207]*207construction that all the relatives of the infant, either by affinity or consanguinity, if they resided in the county, were to be notified of the time and place appointed for the hearing of the application ; and that the surrogate was only to decide upon the reasonableness of the notice. The act of 1837, concerning the proof of wills, &c. has modified the provisions of the revised statutes in this- respect, by declaring that the notice shall be required to be served on such relatives only of the minor as the surrogate shall direct. (Laws of 1837, p. 532, § 44.) This modification, however, does not relieve the surrogate from the duty of making the inquiry contemplated by the revised statutes ; for the purpose of ascertaining who are the relatives of the infant residing in the county, and of directing notice of the application to be given to such and so many of them as may be deemed reasonable for the purpose of having the rights of the infant properly attended to upon the application. Where the application is made by one who is not nearly related to the infant either by affinity or consanguinity, it is the duty therefore of the surrogate to inquire and ascertain whether the infant has any such relatives in the county who are of sufficient age and capacity, to protect the rights and interests of the minor in the selection of a proper guardian, and in obtaining sufficient security from such guardian in reference to the nature and value of the infant’s property. And if the nearest relatives of the infant do not-join in the application, or give their consent to the same, the surrogate should direct notice to be given to such and so many of them, who are residing in the county, as he may deem necessary to protect the infant’s interest and rights on such application. He should enter his decision on that subject in the minutes of his proceedings, and should require the applicant to furnish the evidence of the service of such notice before he proceeds to make the appointment. So where the application is made by a relative of the infant, the surrogate should make the requisite inquiries, and ascertain whether there are any other relatives related to the infant in the same degree, or [208]*208more nearly ; and direct notice of the hearing of the application to be given accordingly.
Here, if the return of the surrogate is to be received as the only evidence of what took place before him, as the respondent’s counsel insists it should be, it is evident the surrogate made no inquiries, in the form required by law, to ascertain whether the minor had any other relatives of the same or of a nearer degree of relationship than the applicant. For the petition is entirely silent on that subject; and the rest of the return of the surrogate, which he- states is a correct transcript of all the records and proceedings in his office on this application, contains no evidence that the petitioner or any other person was sworn as to the existence of other relatives of the infant, in that county or elsewhere. And where the surrogate errs, either by neglecting to make the proper inquiries as to who are the relatives of the infant, or in not directing notice to be given to such of the relatives as in the exercise of a sound discretion he should have directed to be notified of the time and place of hearing the application, the appellate court may reverse his decision, and may set aside the appointment of the guardian upon that ground.
Again ; if we are at liberty to look out of the transcript, to the petition of appeal and the answer thereto, for the purpose of connecting the original application of the appellant with this subsequent appointment, so as to render it proper for the surrogate to dispense writh any further notice to the maternal relatives of the infant, who all lived together in the same family, I think there is good reason to believe the surrogate has acted upon an erroneous principle, in supposing the paternal uncle was entitled to a preference over the maternal relatives standing in the same degree of relationship to the infant. The fact that the real estate, which constituted all or nearly all of the infant’s property, came to him by descent from his father, and therefore would go to his paternal relations in case of his death under age and without issue, affords no grounds whatever for giving a preference to the paternal [209]*209relatives in the appointment of the guardian. On the other hand the expressed wishes of both of the deceased parents of the infant, that he should be brought up a farmer, under the care or guardianship of the maternal uncle, in whose family he had lived four or five years, was a circumstance which certainly should not have been overlooked by the surrogate in deciding upon the relative claims of the parties to the guardianship.
The statute having authorized any person interested in the allowance or appointment or removal of a guardian, as next of kin or otherwise, to appeal from the decision of the surrogate, it is not absolutely necessary that the appeal should be in the name of the infant as the nominal appellant; nor that the appellant should have any pecuniary interest, in the appointment or removal of the guardian, to entitle him to institute an appeal in his own name. It is proper, however, that the infant himself should be made a party to the appeal; especially where the appeal is from an order [210]*210of the surrogate removing a guardian, or refusing to appoint the person by whom the appeal is brought. (Kellinger v. Roe and others, 7 Paige’s Rep. 362.) Even where the appeal is from an order appointing a guardian, if the infant does not himself appeal by his next friend, the appellant may make him a party to the petition of appeal, jointly with the person appointed as guardian by the surrogate. But in that case, as the guardian himself must be made a party, there does not appear to be any absolute necessity for making the infant a party also. For the court may appoint some suitable person to protect his rights, if necessary, although he is notanominal party to the appeal.
The decision of the surrogate, making the ex parte appointment of the respondent as guardian, without notice to the grandmother of the infant, who was his nearest of kin residing in the county, must be reversed. And it must be referred to the injunction master of the seventh circuit to inquire and report who will be the most proper person to be appointed the guardian of the person and estate of the infant; and to ascertain and report the amount of the personal estate and the value of the real estate, and also the annual value of the rents and profits of the real estate of the infant; and to approve two sufficient sureties of the guardian in double the amount of the personal estate and of the gross value or amount of the rents and profits of the real estate during the minority of the infant. And the master is to summon before him and examine the grandmother of the infant, and such other relatives and witnesses as he may think proper, or as either of the parties to the appeal may require, in relation to the subject matter of such reference. Upon the coming in and confirmation of the report, either of these parties, or any other relative of the infant, may apply for such further directions as may be proper in the premises. And until the final decision upon the appointment of the guardian, the infant must be placed under the care and protection of the appellant, as he was previous to the appointment of the guardian by the surrogate. The question as to the costs on the appeal is also [211]*211reserved until the coming in of the master’s report; which report" either party is to be at liberty to except to within eight days after notice that it is filed.
See Witty v. Marshall, (23 Legal Observer, 125,) decided in November, 1841; where V. C. Knight Bruce said the declared will of the deceased father should have been followed in the religious education of the ward.