Year: 1879

estranscment. When Mrs. Carman. following the
death OF Mr. carman, applied for the general guar
danship of the SON who was thon minor Mrs. Gun
ming objected. knowing as she did full we'll that
compliance with such application could only result in
the whole estate being squnndered before he became
of age The result OF Mrs. Cummings objections
the appointment by the Supreme Court Of two trust
companies guardians OF her brothers estate and
OF his mother AS guardian OF his person. Finding
that various conditions specified in respect to
the later guardianship. having mainly ref.
thu infant heir. were being disregarded by the
mother. Mrs. Cunning was again compelled to in
Barrett gave order more express aud posi-
tive in its terms upon this point. Mrs.
os M to be @ Ss
guardian of her sor. No less than three distinct
motions to this effect were made in court and most
strenuously urged each time by Mr.. Charles
T.. Whitehead. her attorney. Mr.. Elbrdge T. Gerry,
counsel for Mrs. Cunning At strenuousy opposed
all such man9uvrcs to obtain control of the estate.
Mrs. Cunning, on the third application, filed petit
ton setting forth the whole history of the case the
substance of which published at tho time
in the HERALD. referee. appointed to take
proofs of the matters stated in Mrs. Cummings
petition, reported that the charges made by Mrs.
Cunning as to the wasting by her mother Of the
allowance tor her brothers support and the neglect
OF his education were true and thcrenpon the
two gentlemen to superintend his education and
making them additional guardians OF his person.
This order also provides for the summary punish
mcnt of Mrs. Carman in the event of any further vio
lation by her of the orders OF the Court.


The above recital Is a melancholy narrative. show
in a most dismal light the sharp schening of
mother to obtain the control of large estate to the
detriment OF her son. Lighting up the gloom how
ever, is shown the Court throwing the egis of its
protection about the infant and neglected heir.


There is legal aspect to the case forming one of
the underlying of the story peculir inter-
est to the profession This part of the story is ca
pable OF brief narration. Mr.. Whitehead. after the
entry the 10Th OF last March of the final order
the referees report, above referred to- made
ton for allowance and for his expenditures
as counsel and asking that the same be paid out of
the infants estate. Judge Potter at Supreme Court,
Special Term, granted a motion to this effect Mr..
Gerry satisfied to let the matter rest here. but at
the latter tribunal the case argued at great
length. Mr.. Gerry urged that Mrs. Carmans coun-
sci was not entitled to any allowance. from the fact
that he was unsuccessful III every motion to have
Mrs. Carman appointed general guardian; that
the orders made upon every application by
wrensdoing; that the report of the referee does
not leave the question in doubt; that her entire
at variance with the orders of the
Court and the interests OF the infant that to
grant an allowance in such case, in like man.
ner as If she had been invariably in the
right, is to offer premium to her in the
future to disregard the orders Of the Court and the
interests of the infant and indeed that the fact that
the Court by it's last order to continue her
as guardian of his person. He urged that
it would tS be 81 tho to
allowance and disbursements. for the that it
would be difficult to see upon what theory either the
infant his estate has derived any benefit
whatever from the vexatious motions made
by Mrs Carman and her repeated violations
OF the orders of the Court intended for
his benefit and that these motions simply at
tcmpts by Mrs. Carman to obtain possession of the
estate of the infant to obtain footing in court
his general guardian, to interfere with it. His


final points that the order Of the Special Term is
utterly upsanctioned by precedent and it is believed
unwarranted by the facts that the learned justice who
granted it unfortunately had no previous familiarity
with the and evidently supposed by his request
that the appellant should stipulate to the amount
that it was matter within her control and that her
acquiescenee was all that was required.


The General Term. in it's opinion just rendered.
sustains fully the position taken by Mr.. Gerry
After rcciting the facts the opinion which is given
per curiam, concludes follows:-"Under
such circumstances think allowance
should have been made by the order appealed FROM
either for counsel fees Disbursements. The
penses should be borne by the guardian herself and
not by the fund Of the infant, inasmuch it is
clearly apparent that they caused by her
neglect OF duty. 1t would not have been i'm
proper for the Court to have charged the whole of
the expenses upon the guardian personally, and i'll
strctness that ought to have been done. The Court
however i'll tenderness to her, and with a view Is
said in the opinion to leave room for future amend
ment, refrained from subecting her to the costs Of
the proceeding 1t should not now by any additional
order throw such costs. tar they incurred
by her in attempting to defend the conduct severely
condemned by the Court upon the estate of the
fant. The order below should be reversed with $40
costs and disbursements.