In re the Estate of Kaufman

—This is an application under section 2650, Code of Civil Procedure, of the Few Surrogates’ Law of 1914, for an order dispensing with security by the guardian of an *192infant. When this section of the Hew Surrogates’ Law was first enacted I expressed my grave concern and. fear that if generally construed and applied that section would operate harshly and to the discomfiture of infants coming before this court. (Estate of Seiffert, Surr. Decis., 1914, p. 1135 ; Matter of Hirshfield, 88 Misc. Rep. 399.) The Supreme Court has arrived at a similar conclusion in so far as infants before that court were concerned. (Haug v. Hewitt, 87 Misc. Rep. 67 ; Benson v. Siemons, 92 Misc. Rep. 509.) I am aware from the reports that such decisions were not approved by some of my learned confreres. They argued that the ease and benefit of poor people who could not afford bonds should be first considered, and the usual criticism of reactionary construction of this beneficent law was not lacking. In imitation of the practice of some other counties, it appears that printed books were prepared in this county to facilitate such applications and subsequent proceedings by such guardians for maintenance allowances to be made out of the estates of such infants. Of the preparation of these books I was not made aware. But I am responsible in some' measure for their continuance, because .1 consented to give them a trial.

I was never impressed by the arguments in favor of that construction of the new law which might enable the guardians of poor children to make way with their little estates; nor was I impressed by wisdom of short cuts to allowances for maintenance. The protection suggested by the act as a substitute for security seemed to me hollow and grossly defective, as has proved to be the case. After a year has elapsed since the new law went into operation, time, that great solvent of all evils, has justified all my apprehensions and vindicated every word of my most frank criticism. I am now advised by the guardian clerk of this court 'that' in some instances these guardians, giving no security under the law, have boldly walked off with the infants’ estates, or, where sums have been allowed such guardians for the infants’ maintenance, these suretyless guardians *193have converted the allowance to their own use and failed to apply the same, or even a part thereof, to the use of these poor infants: Forty-six per cent, of the guardians named without bonds under the new law are in default. If we were to call them to account, having given no security, they would not respond to the decree, and to commit them to the common j ail for disobedience would be a great public charge. These helpless children thus defrauded are now beginning to complain aloud to this court, but their cries, to my sorrow and regret, must this time fall on a deaf ear, as where no bonds have been required of the guardians, they are, in every instance, personally irresponsible. It must be apparent that such a state of things cannot be allowed to continue in an orphans’ court. I shall hereafter, under no circumstances, no matter how much importuned, or annoyed, or reprehended, designate any guardian for any infant without full and ample security; nor will I hereafter entertain any short application for maintenance^ written in any office book of forms, or formulated in any other manner than that anciently employed in this court before the new law went into effect. Of this I am finally and firmly resolved.

Application denied.

NOTE ON CODE CIV. PRO., § 2650.

The provisions of section 2650 of the Code of Civil Procedure apply to guardians appointed by will.

Where letters of guardianship are applied for pursuant to an appointment contained in a will, and the estate of a minor is* less than $2,000,. held, that in the county of Bronx, being a county containing a part of a city of the first class, the petitioner is not required to give a bond, but must comply with the provisions affecting guardians of such estates in such counties contained in section 2650. (Matter of Heubsch, 12 Mills Surr. 556 ; 87 Misc. 566.)

An application for the issuance of letters of guardianship of an infant entitled to a legacy or distributive share under $2,000, without security *194will be denied on the ground that § 2650 is in hopeless conflict with § 2739, which the court will' follow as the one most consistent with justice and public policy, and a guardian appointed on his filing security double the .amount of the property, will be approved by the surrogate. (Matter of Hirshfeld, 13 Mills Surr. 333 ; 88 Misc. 399.)

Upon the settlement of an action brought on behalf of an infant, the court will not direct payment of the proceeds, less, attorney’s fees, to- the infant’s general guardian appointed by the surrogate without a bond. (Haug v. Hewitt, 87 Misc. 67.)

An action to enforce the liability of the sureties on the deceased guardian’s bond may be maintained by the latter’s successor. (Van Zandt v. Grant, 67 App. Div. 70.)

Such successor should he required to give a bond in an amount at least ■twice the value of any property in his hands added to the amount which the administrator is adjudged’ to pay over to him. (1901) Id.

A fund acquired by the settlement of- an action brought in the Supreme Uourt for personal injuries to an1 infant must remain under the control of •said court which is in duty bound to see that the fund is conserved, or, •if necessary, applied under its direction for the benefit of the infant, and the petition of his general guardian, appointed by the Surrogate’s Court without bonds, that said fund be turned over to him and another, for the •avowed purpose of enabling petitioner to apply to the Surrogate’s Court for the withdrawal of part of the funds to pay for medical attendance :and “other expenses” of said infant, will be denied. (Benson v. Siemons [1915], 92 Misc. 509.)

Payment by an insurance company of the amount of a policy due the infants by a check drawn to the order of the guardian, individually and as general guardian, without including the name of the person designated in the order to serve jointly with the general guardian, is no defense in an action for the amount of the policy. (Duncan v. Mutual Life Ins. Co., 99 Misc. 280.)