In re Lansing

The whole of this proceeding is irregular and improper; and the master has made this certificate without authority, as well as without examination or reflection. In the case of Whittaker, (4 John. Ch. R. 378,) Chancellor Kent decided that the husband could not be appointed guardian to sell the estate of his infant wife. And in the case of Wilson and others, (2 Paige's R. 412,) this'.court also held that the general guardian of the infants, if they had one, was the proper person to be appointed to sell their real estate, unless some sufficient reason was shown for substituting another for that purpose. In drawing this petition, the standing rules of the court have been wholly disregarded, both as to form and substance; and the master should not have attempted to act on such a petition. The caption of the petition is a viola*266tian of the statute, and of the 10th rule of this court. The petition should also have been presented by the general guardian of the infants, if they have any; and if they had no general guardian, that fact should have been stated in the petition. And all the other requirements of the 158th rule should have been complied with. The verification of the petition should have been in the form prescribed by the 18th rule. It was not sufficient for the master to certify that the persons offered as sureties were worth the requisite sum, in the words of the rule; but he should also have gone into an examination as to the age of of the infants and the actual value of their several interests in the property, so far at least as to ascertain that the value of the property, as stated in the petition, was substantially correct. And from these data he should have ascertained and certified what was the requisite sum, according to the 157th rule, in which the security to each infant was to be given, and that each of the sureties was worth the requisite sum, over and above all debts; so as to enable the court, upon the coming in of the petition and master’s certificate, if a guardian was appointed, .to direct the proper security to be given.

The petition in this case must be dismissed; but with leave to the general guardian of the infants, if they have any, or then-next friends, if they have no guardians, to join with the husband and renew the application upon a proper petition and master’s certificate.' Although the husband cannot be appointed the guardian of his wife for the purposes of the sale, I think some third person may be appointed, with the consent of the husband, to join with him in the sale, and thus convey the interest of the wife, under the statute. The general guardian of the estate of the infant wife, if she had one at the time of her marriage, is the proper person to be appointed for that purpose.