Surrogate's Court, New York County, December, 1914. [Vol. 88. should be reluctant to ascribe to the legislature an intention to leave infants who are entitled to small legacies or distributive shares absolutely unprotected against the misconduct of their guardians, or the misuse or wrongful application of their estates by such guardians. It is more reasonable to assume that it was the intention of the legislature to limit the application of section 2650 to those comparatively infrequent cases where an infant becomes entitled to property by virtue of the provisions of a deed of trust or as a gift, and that when the infant becomes entitled to a legacy or distributive share of an estate the general guardian. appointed for the purpose of receiving such property may qualify in accordance with the provisions of section 2739 of the Code of Civil Procedure. But I will reserve the consideration of the excepted class of cases until one comes before me. Where two sections of the same act are in hopeless. conflict I am permitted to follow that one which is most consistent with the justice long administered in this state and with the public policy frequently expressed by the courts of the state. In this matter Hart Hirshfeld will be appointed guardian on filing security in double the amount, to be approved by me in conformity with section 2739 of the Code of Civil Procedure. Decreed accordingly. Misc.] Surrogate's Court, New York County, December, 1914. Matter of JOHANNA LITTMANN'S Application to file Supreme Court Record in Surrogate's Court. (Surrogate's Court, New York County, December, 1914.) Guardians - appointment of, by order of court other than Surrogate's -bonds duties and liabilities of general guardian appointed by Supreme Court Code Civ. Pro. § 2653. The new section 2653 of the Code of Civil Procedure which provides that a certified copy of the order or decree of any court other than the Surrogate's Court appointing a general guardian of an infant's person or property, or both, and of the bond or undertaking given by such guardian, and which attempts to subject the guardian appointed by the Supreme Court to all the duties and liabilities of a general guardian in Surrogate's Court has no application to bonds, decrees or orders made by the Supreme Court prior to September 1, 1914. APPLICATION to file in Surrogate's Court a certified. copy of guardian's bond and order of a justice of the Supreme Court appointing a guardian. Nathan Ottinger, for petitioner. FOWLER, S. This application to file in the Surrogate's Court a certified copy of the guardian's bond and the order or decree of Mr. Justice Philbin, of the Supreme Court of the state of New York, made in June last past, appointing a guardian for one Johanna Littmann, is taken pursuant to section 2653 of the new Surrogates' Law of 1914, which went into effect on September 1, 1914. This type of legislation is revolutionary in this state in so far as it purports to invest this court with a superintending jurisdiction over the Supreme Court of the state. I do not comprehend it. The Supreme Court is a constitutional court, possessed since 1846 of the general jurisdiction in equity exer Surrogate's Court, New York County, December, 1914. [Vol. 88. cised by the Court of Chancery of New York for 150 years. One branch of this jurisdiction extends to the custody and care of infants and their property and estates. Such jurisdiction is ancient, well established and perfectly protected by the Constitution of the state. Wilcox v. Wilcox, 14 N. Y. 575, 578; Matter of Hubbard, 82 id. 90, 92. The legislature has no power to deprive the Supreme Court of such jurisdiction or to impede or impair it in any way. Alexander v. Bennett, 60 N. Y. 204. Besides this, the Surrogate's Court has no adequate authority or power to call a guardian appointed by the Supreme Court to account or to discipline such guardian in any way obnoxious to the Supreme Court. If I were a judge of the Supreme Court I should not hesitate to issue an inhibition to any surrogate who interfered with a chancery guardian appointed by me pursuant to my constitutional jurisdiction. The new section (Code Civ. Pro., § 2653) in question attempts also to subject the guardians appointed by the Supreme Court to all the duties and liabilities of guardians appointed in the Surrogate's Court. This is evidently done for the purpose of compelling them to account to this court. About the validity of this provision I say nothing. But let us suppose for a moment that, as surrogate, I should appoint a special guardian in this court to call to account a guardian appointed by the Supreme Court, and thereafter I should give directions in such a proceeding in respect of funds in the hands of the Supreme Court guardian and subject to the control and order of that court only. As surrogate I would have no authority to enforce such orders. I am not likely to lessen the dignity of this court by making any such futile orders or decrees. I shall not attempt to control the Supreme Court while in this court. I make Misc.] Surrogate's Court, New York County, December, 1914. the above hypothesis simply by way of argument and illustration. It is only necessary to refer at this time to the opinions of the Court of Appeals in Wilcox v. Wilcox, 14 N. Y. 575, 578; Matter of Hawley, 104 id. 250, as they and cognate decisions lead me inevitably to the principles and the conclusions I have enunciated. Concerning the power of the legislature to direct the mere filing of Supreme Court proceedings in this court I will say nothing at present. It might direct them to be filed in a church vestry. Such filing in this court would be abortive, as I have already shown. The act prescribes no penalty for not filing same, and the legislative mandate probably would not be enforced by the courts, as the law never compels vain or useless things. Lex neminem cogit ad vana seu inutilia peraganda. But it is perhaps unnecessary at this time to hold further in this proceeding than that section 2653 of the Code of Civil Procedure has no application to bonds, decrees or orders made by the Supreme Court prior to September 1, 1914, when the new Surrogates' Law went into effect. The application will, therefore, be denied. Application denied. Matter of the Estate of MARY A. CONNOLLY, Deceased. (Surrogate's Court, New York County, December, 1914.) Guardians - duties of when objection by special guardian upon accounting overruled. Where the general guardian of an infant to save its mother from a pauper's grave paid her funeral expenses, sixty-seven dollars and fifty cents, out of the infant's estate, an objection thereto made by the special guardian upon the accounting of the general guardian will be overruled. Surrogate's Court, New York County, December, 1914. [Vol. 88. OBJECTION of special guardian to the payment of certain moneys by a general guardian. John Patrick Walsh, for petitioner. Leonidas Dennis, for United States Fidelity and Guaranty Company. Andrew S. Hamersley, special guardian. FOWLER, S. The general guardian of the child paid the burial expenses of the child's mother, sixty-seven dollars and fifty cents, to save her from a pauper's grave. Objection is made to the payment by the child's special guardian. My first impression was that the objection must be sustained, but on reflection I was not so clear, and I have re-examined the point for myself, not having been helped by reference to any authority or principle on the argument. It seemed to me that it would be a scandal in the law if a child with an estate was not morally obligated under the circumstances. I find that Judge Reeve, as I supposed, in his excellent old book on "Domestic Relations, "Domestic Relations," now a classic in our country, states generally that it is the duty of children who are able so to do to support indigent parents. He places the liability, however, on the basis of the Statute of 43 Elizabeth, generally re-enacted in America. I find that 43 Elizabeth was expressly reenacted in New York with enlargements (1 K. & R. 566, § 21; 1 R. S. of 1813, § 21; 1 R. S. 614), similar to the Connecticut law, which seems to have been founded on a most excellent equity. The statute, tucked away in a composite section of a later act, appears, I fear, inadvertently to have been repealed and not re-enacted. Laws of 1886, chap. 593; Consolidated Laws, table of laws repealed. But does it make any real difference in this case whether the liability of an infant is recognized in law or only in equity? It is |