#### Matter of the Estate of Edwin L. Burdick, Deceased.

(Surrogate’s Court, Erie County,

April, 1905.)

Will — Testamentary guardian — Eight of surviving parent — Attempted appointment held invalid — Power of surrogate — Code, §§ 2822, 2827.

The management and control of both the person and estate of a infant are by law in the surviving parent and may not be taken away except by the most controlling and preponderating evidence of unfitness.

Testator by his will appointed two persons to be the guardians of his three infant children and three others to be the joint guardians of the estate of each of said children, and directed that all funds and securities belonging to each of said children should be received, held and paid out by them jointly as such guardians. Held, that the attempted appointments were without authority ' of law; that the power to nominate different individuals in the two capacities for the control of the estate and the person was vested alone in the Surrogate’s Court by virtue of sections 2822, 2827 of the Code of Civil Procedure, and that while the testator could have subverted the mother’s rights of guardianship, in so far as the management of the infant’s’ property was concerned, by denominating a trust, and appointing trustees to eariy it into effect, his failure so to do could not be remedied by a construction that the will conferred a trust power of management, the ■ language of the will expressly excluding any intention to create a trust.

•Pbo'Ceedistg for judicial construction of will.

Robert W. Pomeroy, for executors.

*29Hartzell & Hartzell, for Alice Hull Burdick, guardian.

Frederick B. Hartzell, special guardian for Marion Burdick, Carol Burdick and Alice H. Burdick, infants.

Marcus, S.

The" last will and testament of Edwin L. Burdick deceased, with the exception of the fourth paragraph thereof, was admitted to probate in this court.

Objections were filed by the widow, Alice Hull Burdick, and also by the infant children, through their special guardian, to the fourth paragraph of said will, which attempted to nominate guardians of the persons and estates of the three infant children, and the court is asked to construe that part of the will which reads as follows: “ FOURTH: I nominate and appoint Charles S. Parke and Riselay Tucker, to be the guardians of the persons of my three children, and August B. Kellogg, George H. Dunston and George 0. Miller, to be joint guardians of the estates of each of my three children, and I direct that all funds and securities belonging to each of my children, shall be received, held and paid out by them jointly as such guardian.”

This court has already held in this case upon the question of guardianship that both the custody and tuition, that is, the management and the control of both the person and estate of an infant, are, by law, vested in the surviving parent, and "will not be taken away except by the most controlling and preponderating evidence of unfitness.

Application having been made by the mother of these infants for her appointment as guardian, the same having been opposed, resulted in letters being granted to her.

There vras no right at common law for the appointment of a testamentary guardian by the parent. The same is entirely regulated by statute. Without reciting all the statutory enactments since the year 1787 when the provisions of the English statute were embodied in our laws, it will always be found that *“*custody and tuition ” is the language used in the different acts. Our first statutory enactment followed the English statute of 12 Car. 2, c. 24, § 8, which authorizes the father “ to dispose of the custody and tuition.” *30The use of these words is historical and of legal significance: “ Custody and tuition ” have more than ordinary signification, for they include not only the person hut the care and management of the personal estate, and also the profits of the real estate of the minor. That is, the guardianship of the person includes the guardianship of the estate.

Blaekstone says: “ The guardian with us performs the office both of tutor and curator of the Roman law, the former of which had charge of the education and maintenance of the minor, the latter, the care of his fortune; or, according to. the language of the Court of Chancery, the tutor was the committee of the person; the curator, the committee of the estate. But these offices were frequently united in the civil law; with us, they are *always*united in the law with regard to minors, though as to lunatics and idiots, they are c-ominonly kept distinct.” 1 Blackst. Comm. chap. 17.

The attempted appointment by the testator of guardians both as to the person and the estate of the infant children was invalid and without authority in law (Matter of Zwickert, 26 N. Y. Supp. 773; Matter of Haggerty, 9 Hun, 175; Matter of Schmidt, 77 id. 201; Matter of Alexander, 70 N. Y. St. Repr. 431), and therefore appointments of guardians by sections 2822 and 2827 of the Code of Civil Procedure control. Though the Code likewise provides that the surrogate may vest guardianship. of the person and estate of a minor in separate persons there is no power to do so residing in the surviving parent. In other words, the power to nominate different individuals in the two capacities for the control of the estate and the person, resides alone in the court.

The contention is now made that it was obviously the intention of the testator to confer upon the parties named as executors who are the persons named in the fourth paragraph of the will as *“*joint guardians of the estate of each of my three children,” a trust power of management, the estate vesting in the meantime in the children; that a testator’s intention as to the management of his estate if not Inconsistent with the law, will be carried out as faithfully by the court as his intention in regard to the disposition of *31his property; the canons of construction and rules of interpretation being applicable to both, that a trust is established by the context of the will.

It. is further submitted for construction that the whole context of the will fairly import an intention on the part of the testator to create a trust for the management of the estates of the infants, notwithstanding the invalidity of the attempted appointment of guardians, and also notwithstanding the use of the words chosen by the testator to express such intention.

While it is true that no technical terms are necessary in order to express or establish a trust, it is also true that there must be some language, indicating, at least, an intention on the part of the testator to form or create a trust.

Further, three elements must concur to make a valid trust: Sufficient words to raise it; a certain trust; a definite object. The intention of the language must bring into existence two estates: a legal estate passing to the trustee; an equitable estate to the *cestui que trust.*

An endeavor to spell into the will “ the testator’s intention ” seems very strained, when it is urged that the appointment of guardians really meant trustees. There is no intention expressed to create a trust, and the language of the will expressly excludes such an intention, and this conclusion is strengthened by the fact that the disposing clause of the will passes the entire estate directly to the children, without the1 intervention of trustees or any person under any official title.

The testator could have subverted the mother’s rights of guardianship in so far as the management of the infants’ property is concerned by denominating a trust, and appointing trustees to carry it into effect. That he did not do it, or even attempt to accomplish it, cannot now be remedied by a construction so drastic as is now contended for.

The rights of the mother, as the guardian, cannot be. invaded and set aside by the court in an endeavor to declare what the testator himself failed to declare. If some property right were in danger, where the testator’s intention was clear, the court possibly could effect a disposition of the *32property when not in violation of the absolute rights of others, or a principle of law.

A case in point is reported in 49 Massachusetts, 127, the facts being as follows: A testator by his will gave his real and personal property to the children of his nephew and their heirs and assigns forfever, and appointed their father to be their guardian without bonds for the purpose of receiving and managing said property so given.

It was conceded that the attempt to appoint a guardian was void under the statute and without authority in law, and in an endeavor on the part of the appointee to have the court declare him a trustee to carry out the testator’s intention to receive and manage the estate, the court declined to do so, and held that the appointment of the guardian being void, the whole thereof was invalid, and that such intention, if it existed, could not be recognized by the court, but that it was merely an attempt on the part of the testator to do something that was not authorized by law; and the court held further, that the appointee could not take the estate as the trustee, since the intention of the testator was plain, that he wished him to take in his capacity as guardian, and that being void, he did not take at all. Bingham & I, Executors, v. Wheeler & I, 49 Mass. 127.

The cases cited by the proponents upon this trust question, or power in trust, have to do entirely with the disposition of property and where the property rights were in danger, in view of the testator’s failure to effect his intention by the language used.

In the cases cited, where the entire scheme of the testator would fail as to the disposition of his property were it not for the intervention of the court — the court took upon itself a construction resulting in a trust for the purpose of effecting the testator’s intention, where the same did not violate any of the absolute rights of other parties, or any principle of law. But no authority has been cited where for the purposes of management of the estate such rule has ever been invoked.

Executors are in a certain sense trustees, in that they manage the property of other's, but in this case they are not *33trustees in the sense in which that word is used by courts and lawyers and recognized by the law and contended for here.

The powers of management conferred by the will are, to the court’s mind, purely powers and duties conferred upon them in an executorial capacity.

A decree may he submitted in accordance with the foregoing.

Decreed accordingly.