The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-01-12
Supreme Court-special Term.
QUESTION OF GuARDIANsHIP.


JAN. lO,-Wus Mttcheu pldiWt,G, 0aaieI LinSassa
acknowledgements, J.-Where father by his VIII
the guardians of his infant child of them
cnes act in either capacity the other vested
with the whole trust in both capacities, we'll that Il
guardian that of executor The guarei appoiAt
has the right to the custody and Of ths
personal estate Of the minor and the profits of his reai
estate whether derived from the father of the miner
from any other female st the ago of sixeea.
s'msy bequeath her personal estate by wi in Other
words she may execute in that manner the absoluts
power of disposition implied in the proprietary chsrAs
ter; 1t follows consequence that, unless specially
prohibited, she may execute ut the age, in The
same manner, the lesser power of disposition, den0m
mated IN law power Of appointment. No female, how
ever, under twenty make will of real estate
whether in execution OF the power of ownership or Ct
power Of appointment the statute expressly f,rbis It.
The executors of Mrs. Bradys father beiag directed"
estate and TO turn into money such real estate in tie
of the law must be deemed personal subject ~
the rules which govern personally. But the appoint
ment made by Mrs. Brady in favor of Mr. Brady,
fesed execution of the given her by her fathers
will although not void the ground of her being under
is void on the ground that the power by it,
terms, TO De exercised only failure Of issue
whereas Mrs Brady left child and that child takss
through its mother but direct from its mothers
father. Mr.. Brady, therefore, took hing his
wies appointment, and as = consequence could give
nothing to his own executor as such-the plaintiff must
claim in the character Of Parliamentary guardian Of Mr.
Brady's infant child, and 10 that character only Al
Though by the Revised Statutes the plaintiff in that cha
of the infants estate, yet BY the code, . statu4s
subsequently enacted it Is declared that guardiaa
appointed or an INFANT shall be permitted to receive
perry Of the infant until he shall have given sufficient
security" &C.; and the Revised Statutes had pre-
viousy designated every person to whom a fathsr
should give "the CUSTODY and tuition" of his
child, by deed will, as "guArdan for such
minor appointed BY the father" were It, howsvsr,
doubtful whether the code applies to any guardians
other than those appointed by Court, 1t would stA
be proper in favor of infants, in al Of testA
mentary guardianship, to require security especially
a. such guardianship may be created by father WIS
himself is uncer age, the statute giving the right Of sP-
poinment to every father, whether Of full age mi
nor" Parliamentary guardian may nevertheless sss
mining the amount payable, to judge what security
will approve and therefore require. The co-gusrdiaa
who has not accepted the Office should either be made
party defendant, to bind him by the Decree or
should give written disclaimer, be annexed ana
fled with the papers in the cause. Let the planHHra
counsel prepare draft decree according the above
notes Of decision and submit for settlement notice
tn fhe danfs