Opinion
January, 1916.
Olcott, Gruber, Bonynge McManus, for petitioner.
This is an application under section 2650, Code of Civil Procedure, of the New Surrogates' Law of 1914, for an order dispensing with security by the guardian of an infant. When this section of the New 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 Hirshfeld, 88 Misc. 399. The Supreme Court had arrived at a similar conclusion in so far as infants before that court were concerned. Haug v. Hewitt, 87 Misc. 67; Benson v. Siemons, 92 Misc. 509. I am aware from the reports that such decisions were not approved by some of my learned confrères. 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 I 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 the 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 have 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 jail 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.