mortgaged premises; and I do further report, that I have executed good and sufficient deeds for the said premises, so sold as aforesaid to the above named purchasers. All which I respectfully submit to this ho norable court. Dated, New-York, day of 1818. I. H. Master in Chancery.* Reference to a master concerning the custody of children on the separation of their parents. By the act of 17th of April, 1815, (a) it is provided, that it shall and may be lawful for the Chancellor, in any proceedings commenced, or to be commenced in the court of Chancery, by or on behalf of any feme covert, being an inhabitant of the state, under the act concerning divorces and for other purposes, and either before or at the final hearing of the cause, or afterwards, as occasion may require, to make order, as between the parties for the custody, care, and education of the children, and upon sufficient cause shown thereafter, to annul, vary, or modify such order. It is also provided by the said act, that when any husband and wife, having children of the marriage under age, live in a state of separation without being divorced, the Supreme Court, on application of the wife, being an inhabitant of this state, may cause such children, or any of them, to be brought before it on an habeas corpus; and on return of the writ, the said court, on due consideration, may award the charge and (a) 3d Vol. Laws, page 225.(c) In addition to these proceedings in the court of Chancery, the compiler has thought it would be desirable to introduce the statutary mode of proceeding to fore. close mortgages by public advertisement, under the power of sale contained in the mortgage. These proceedings will be found in a separate chapter at the end of this work, immediately preceding the appendix. custody of the children so to be brought before it, or any of them, to the mother, for such time and under such regulations and restrictions, and with such provisions and directions as to the same court shall seem proper, and as the case may require; and the said court shall at all times thereafter, as long as the husband and wife shall continue separate without being divorced, have power, on sufficient cause shown, to amend, vary, or modify the order to be made. When application is made to the court of Chancery under this act, which is usually done by petition, the court will direct a reference to a master, to ascertain and report the truth of the facts stated in the petition, and the value of the property of the husband: upon which reference, the master will summons the parties before him in the usual mode, and having examined into the subject, will make his report to the Chancellor, that such further order may thereupon be inade as the court may deem proper. In these cases, the application is by petition when the party wishes an order to be made respecting the custody of the children, while the proceedings are pending upon the bill filed for a divorce or separation: If the immediate order of the court is not wanted, then no petition is presented, but the court, upon the hearing of the cause, directs a reference if necessary, or pronounces its decree without a reference, according as the state of the cause, and the proofs therein, will enable it to determine. proceeding. OF THE APPOINTMENT OF GUARDIANS FOR INFANTS. This subject will be treated of under four divisions: I. Of the appointment of guardians for the custody of the persons and estates of infants. II. Of appointing a guardian ad litem. III. Of appointing a guardian to sell real property belonging to infants, under the act of the 24th March, 1815. IV. Of selling the real estate of infants, under the act of April 9th, 1814. I. Of the appointment of guardians for the custody of the persons and estates of infants. Special Contents. 1. Of the mode of proceeding. 2. General powers of the court upon this subject, and decisions respecting such guardians. 1. Mode of THE forty-fourth rule of court prescribes, that for the purpose of having guardians appointed for infants, a petition may be presented by such infants if above the age of fourteen years, or by some person on their behalf if under that age, praying such appointment; that previous to the presenting the same to the Chancellor, the person petitioning may apply to any of the masters of this court, residing in any county of this state, who shall by inspection, or otherwise, ascertain the age of such infants, and if such infant is of the age of fourteen years, or above, shall examine such infant, as to his nomination of a proper person for guar dian-shall ascertain the competency of the persons proposed as guardians, the amount of the property to which the infant is entitled-distinguishing between the real and personal estate-the annual value of such real estate, the amount of the surety to be given for the faithful performance of his trust as guardian, and the names, description, and competency of the securities offered. That the master making such inquiries shall annex a report, containing all those particulars to the petition, without any previous reference for that purpose. To the end, that thereupon an order may be made, upon producing such petition and report to the Chancellor, for the appointment of such guardian.(a) If the infant is of the age of fourteen years, he must be examined by the master as to his choice of a suitable person for his guardian, which examination should be made privately, and in such a manner as that the master may be fully satisfied, that the answers are not given under any improper influence or preparation. After the examination of the infant, it will be the duty of the master to ascertain, by the oaths of witnesses taken in writing, and subscribed by them, the amount of the property to which the infant is entitled, distinguishing the real and personal, the annual value of the real estate-the amount of the security to be given for the faithful performance of his trust as guardian, and the names, descriptions, and competency of the sureties offered. When the master is satisfied on these points, he will make a report of the particulars, and annex it to the petition. If the report is confirmed, and an order for the (a) Rule 44. powers of the appointment is entered, the bond is to be executed and produced to the master for his examination, who will endorse his approval thereon. 2. General The powers of the court of Chancery over infants court respect- are very extensive; sometimes they reach them in the ing, infants. life-time of their parents, and never fail to afford protection to their rights whenever an application is made for that purpose. When there is no guardian, an infant may, by petition, without suit, obtain an order for the appointment of a person to act as guardian.(b) This appointment may be made, (even where the father is living, if he be an improvident person,) and he may also obtain a reference as to a maintenance.(c) The court of Chancery may discharge or change a guardian appointed by a surrogate; but it is not done unless on special cause shown.(d) A father who has been appointed guardian to his infant children by the court, and has given competent security to the executor or administrator, under the act, (Sess. 36. c. 75. s. 18. 1 R. L. 314,) and approved security, to account to his children on their coming of age, is entitled to receive legacies and distributive shares belonging to them.(e) Payment by an executor or administrator to the father as guardian by nature merely, is at the peril of the executors or administrators, who may, on the infant's attaining to full age, be compelled to pay the same over again.(ƒ) (b) 1 Mad. 267. Ex parte Burchill, 3' Atk. 813. (e) Genet, guardian, &c. v. Talmadge, administrator, 1 Johns. Chan. Rep. S. (c) 1 Mad. Ex parte, Mountford, 15 Genet and others v. Talmadge and others, Ves, 445. (d) Ex parte, Crumb, 2 Johns. Chan. Rep. 489. 1 Johns. Chan. Rep. 561. (f) Genet v. Tallmadge, 1 Johns Chan. Rep. 3. |
