(77 Hun, 201.)

#### In re SCHMIDT et al. In re CLAUSEN.

(Supreme Court, General Term, First Department.

April 13, 1894.)

Testamentary Guardian—Power to Appoint.

Under Laws 1893, c. 175, giving the right to appoint a testamentary guardian to the surviving parent, a father has no power, when the mother is living, to appoint by will a guardian of his infant children; and the-mother, by her subsequent assent, cannot validate an attempted appointment by him.

Appeal from surrogate court, New York county.

Application by Henry W. Schmidt and Peter V. Stocky for letters of testamentary guardianship on the estate of George Ulmer Clausen, a minor. From an order denying the application, petitioners appeal. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER,. JJ.

Moses Weinman, for appellants.

FOLLETT, J.

The power to appoint a testamentary guardian is statutory, and was first given by 12 Car. II. c. 24, § 8. In Ex parte Earl of Ilchester, 7 Ves. 370, Lord Alvanley said:

“It is clear, by the common law, a man could not by any testamentary disposition affect either his land or the guardianship of his children. The latter appears never to have been made the subject of testamentary disposition till the statute 12 Car. II.”

7 Pick. St. p. 474 ; 2 Kent, Comm. 225; 2 Steph. Comm. (8th Ed.) 310; 1 Bl. Comm. 462.

Hence such guardians are called in the books “guardians by statute” or “statutory guardians.” Section 8 of 12 Car. II. c. 24, was enacted in this state March 3, 1787 (Laws 1787, c. 47, § 11; 2 Jones & V. 96; 2 Repub. Laws N. Y. p. 448). This provision was re-enacted February 20, 1801 (1 Rev. Laws 1802, p. 181, § 18), and again March 5, 1813 (1 Rev. Laws 1813, p. 368, § 18), and was incorporated in the Revised Statutes (2 Rev. St. 150). From time to time the Revised Statutes relating to this subject have been amended so that before the passage of chapter 175, Laws 1893 (which is an amendment of the Revised Statutes), it was provided that the father,, during the lifetime of the mother, might appoint a testamentary guardian of unmarried minors, and that the mother, surviving the-father, might also appoint one for her unmarried minor children. 4 Rev. St. (Banks’ 8th Ed.) p. 2612, c. 454, Laws 1888. By the Revised Statutes, as amended in 1893, the father and the mother are declared to be the joint guardians of their minor children. The-*351word “husband” is used in the statute, but it evidently means-“father,” as it cannot be presumed that the legislature intended that a husband should become joint guardian with the mother of children by a former marriage. This act repeals the authority conferred by the former statutes upon the father to appoint a testamentary guardian during the lifetime of the mother. Under the Revised Statutes, as amended, only the surviving parent is authorized to appoint such a guardian. People v. Boice, 39 Barb. 307. The father having no power under the statute to make the appointment, his void act in attempting to do so cannot be validated by the subsequent assent of the mother. The testamentary guardianships which the testator attempted to create were limited to the estates of the minors, but we need not now consider whether such a qualified guardianship is authorized by the statute. It is difficult to see any good reason for taking any risks in this case. The persons to whom it is desired to have letters of testamentary guardianship issued can easily be appointed the general guardians of the infants. The order-should be affirmed.

VAN BRUNT, P. J., concurs in result. PARKER, J., concurs.