#### Matter of the Accounting of Carrie Lothringer (now Franz), as the Guardian of Michael Lothringer, an Infant.

(Surrogate’s Court, Erie County,

March, 1899.)

Surrogate’s Court — Contempt of a guardian, in failing to pay money, excused.

Where a woman was penniless and in bad health and had offered all her household effects in payment of a balance found due from her as guardian to her brother who lived with her, and it further appeared that the deficiency had been spent in the household, the surrogate refused to commit her to jail for contempt in disobeying his order that she pay.

Proceedings upon an application for an order to show cause why a guardian should not be punished for contempt in disobeying a decree heretofore' granted directing the payment of certain moneys.

Charles W. Newton, for infant.

Hammond *&*Hammond, for guardian.

*691Marcus, S.

This is an order to show cause why a guardian should not he punished for contempt in disobeying a decree herer tofore granted directing the payment of certain moneys. Upon an accounting heretofore had, this court found a certain sum of money to be due the petitioner from his guardian. The guardian is a sister of the petitioner. Upon the accounting a cheerless and doleful condition of feeling was exhibited in this court by the testimony produced, between orphan brother and sister, that did little credit to then* relationship and kindred. A balance, however, was found due the petitioner by his sister, the guardian, and a decree was made directing the payment to him of such sum. This, the guardian has not done, and this order for contempt in disobeying that decree, with a request that she be committed to jail, is now prayed for.

No commitment will issue, and these proceedings are dismissed.

I thoroughly realize, the danger of leniency to be extended to those who ordinarily abuse a trust so sacred as caring for the money of an infant. When such funds are misappropriated, none can complain if the law, or a court, lays a heavy hand upon them. *“*It is a kind of robbery to which the courts ought not to lend even tacit encouragement, but rather administer emphatic rebuke. ¡No language of condemnation is too strong for the case.”

I am, however, satisfied that the circumstances are sufficient in this case to entitle the guardian to a charitable consideration, and to all the leanings in her favor. ¡Nbr. do I think her conduct reprehensible enough to call for stringent discipline on the part of this court.

The claim of the guardian is that this money was used in support of the household in which the petitioner lived, together with her and her sister, and while that claim was insufficient in the law to protect her from being in her ward’s debt, I am satisfied that it is sufficient to protect her from being sent to jail, in the exercise of my discretion.

She has no money, and has offered all her household effects, and everything that she possesses, though of little value, to the payment of this sum, which it seems has not been accepted; nor has any execution been issued against her property.

Her physicians say she is frail in health and constitution, and has nervous troubles, and weak lungs, and that confinement in jail would he injurious to her at this time.

*692I do not believe she should be punished for not doing that which she cannot do. I am further satisfied to refuse this application, since I believe that if this guardian were actually in confinement for disobedience to a decree here sought to be enforced, and was now asking to be discharged because of her inability to obey its directions, her application would commend itself to the approval of the court.

Decreed accordingly.