New York County NyArchives Court.....Plumb, James Neale, Matter Of 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 12:16 am

Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

In the Matter of JAMES NEALE PLUMB.

Surrogate—power to suspend a general guardian — to direct him to pay a gross sum 
of money to his ward—the discretion as to expenditures must be exercised by the 
guardian or the court.

A surrogate has no power to restrain a general guardian from acting as such, and 
at the same time to direct him to pay out of the cash in his hands a gross sum 
of money to the infant, to be expended by such infant for school tuition, 
clothing and her daily expenses. Nor has he power to direct a general guardian 
to use the principal of the estate for the support and maintenance of the 
infant, while interest remains uncollected and the debtors owing such interest 
to the estate are solvent.
In respect to the supplies which are necessary for the ward, and the means of 
education suitable for her condition, the ward is not to judge, nor is she to 
incur bills in her discretion. The discretion exercised in such matters must 
either be that of the court or of the general guardian.

Appeal by James Neale Plumb, general guardian of the person and estate of Sarah 
Lenita Plumb, from an order made on the 15th day of February, 1888, entered in 
the Surrogate's Court of the county of New York on the 21st day of December, 
1888, modifying an injunction order made by said surrogate, dated July 19, 1888, 
and directing the said guardian to pay certain bills to be incurred by the 
infant.

Henry Thompson, for the appellant.

David McClure, for the respondent.

Van Brunt, P. J.:

This proceeding was instituted for the removal of James N. Plumb, as guardian of 
the person and estate of the respondent, and an order of reference to take proof 
as to the facts was duly made. Subsequently the surrogate made an order 
restraining the appellant, from acting as guardian either of the person or 
estate of the infant during the pendency of the proceeding or until the further 
order of the court. Appeals were taken from both the foregoing orders, and 
before the hearing thereof an application was made for an order modifying the 
injunction order so as to direct the payment, by the guardian, of such sums as 
might be found necessary for the infant's support and maintenance during the 
pendency of the proceedings. Upon such motion it appeared that in the last 
annual account filed by the guardian, besides certain chattels and bonds, and 
mortgages and cash on deposit, there was a cash balance in the hands of the 
guardian of $6,814.36. Whether this cash was principal or interest does not 
clearly appear. It does, however, appear that interest upon the bonds and 
mortgages has not been collected for more than six months because of the 
injunctions. The learned surrogate upon this application made an order directing 
that the guardian pay out of the cash balance in his hands, within ten days 
after he should receive the same, bills amounting in the aggregate to $800, to 
be incurred by the infant Sarah L. Plumb, for school tuition and expenses 
connected therewith for the coming year; and further to pay out of the said 
balance bills to be incurred in the purchase of necessary clothing, not to 
exceed in the aggregate the sum of $350; and, also, the sum of twenty-five 
dollars a week to the infant's attorneys, said sums to be used by the infant to 
meet her daily expenses. Various objections are raised to this order by the 
appellant. The first is that the surrogate had no power to make the order, 
because of the appeal from the order suspending the guardian pending in this 
court. Secondly, because if the surrogate had power to alter his order pending 
the appeal, the order now appealed from provides for an improper and illegal 
disposition of the infant's estate in that it improperly provides for the 
payment of expenses out of the estate while the income is allowed to remain 
uncollected in the hands of its debtors.

That the surrogate had the power to alter the order pending the appeals seems to 
be reasonably clear. The surrogate was not ousted of jurisdiction because of the 
pendency of the appeal. He had the same right to entertain an application in 
respect to the subject-matter that he would have had, had such appeal not been 
pending. It is perfectly familiar practice, even after an appeal has been taken 
to the Court of Appeals, for this court to amend its orders and resettle the 
same; and this right has been repeatedly expressly recognized by the Court of 
Appeals. New trials have even been, granted after an appeal to the Court of 
Appeals has been taken, and the power of this court to so grant them has never 
been questioned. So in the Surrogate's Court, notwithstanding the appeal, the 
surrogate has jurisdiction over the proceeding, and may alter an order if the 
exigencies of the case requires it, even pending such appeal.

The propriety of such alteration, however, is, of course, a subject-matter of 
discussion, and the subject-matter of appeal in most cases, and should not be 
allowed for the purpose of defeating rights which have become vested by reason 
of the existence of the appeal. But the propriety of exercising the right is one 
question and the want of power is another. We think, however, that the learned 
surrogate should not have authorized the support of the infant out of what may 
be the principal of the estate while its income is uncollected. 

We do not think that there is any power in the court to exhaust the principal 
for support and maintenance while interest remains uncollected and the debtors 
are solvent. In the case at bar it distinctly appears that interest upon bonds 
and mortgages, to a considerable amount, remains uncollected because of the 
existence of the injunction, and that it may be that principal is applied for 
the support of the infant while such income is uncollected, and no attempt made 
to reach the same. And, further, we do not see how it is possible to authorize 
the infant to expend her own estate; either the appellant is guardian, or he is 
not guardian. If he is the guardian of the infant, then the expenditures of the 
estate must be made through him; if he is not the guardian, then the maintenance 
of the infant can only be carried on through the intervention of a guardian of 
her person and estate. To direct the guardian to pay bills to given amounts 
which may be incurred by the infant seems to be a direction in respect to the 
disposition of the funds in the hands of the guardian which cannot be sustained. 
We know of no power in the surrogate to give general directions that the infant, 
no matter what her age may be, shall have the control and disposition of the 
funds belonging to her estate. It may be true that the court could direct the 
guardian to furnish certain supplies for the maintenance and education of his 
ward, but we do not see where the authority is which will justify the direction 
given to the guardian to pay bills which may hereafter be incurred by the ward. 
As far as the question of spending money is concerned, of course, every ward is 
entitled, in proportion to its estate, to a certain amount of money over which 
it has control. But in respect to the supplies which are necessary for the ward, 
and the means of education suitable to her condition, it would seem that the 
ward is not to judge of that nor can she incur bills at her discretion, but that 
it must either be the discretion of the court or the guardian which is 
exercised, and as a consequence it must be the payment of specific bills which 
are directed by the surrogate in his supervisory power over the guardian, or a 
direction to the guardian that he shall expend the money in the purchase of 
supplies for his ward, and the furnishing of education of a particular 
character. Any other different rule would lead to gross abuses, and, although 
the conclusion at which we have arrived may seem to be hard, as far as this 
infant is concerned, yet still it would open the door too wide to depart from 
the regular and well defined path governing the relations of guardians and wards 
and the supervisory power which the court has over such relations.

The order should be reversed, with ten dollars costs and disbursements.

Bartlett, J., concurred.

Order reversed, with ten dollars costs and disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/newyork/court/plumb718gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 9.1 Kb