In Re the Accounting of Kellogg

Cullen, Ch. J. By the will of Edwin L. Burdick, deceased, he provided: “Fourth: I nominate and appoint Charles S. Parke and Risley Tucker to be guardians of the persons of my three children, and Augustus B. Kellogg, Géorge II. Dunston and George C. Miller to be the joint guardians of the estates of each of my three children, and I direct that all funds and securities belonging to each of my children shall be received, held and paid out by them jointly as such guardians.” The testator left him surviving three daughters, all infants, and a widow, the mother of said infants. Subsequent to his decease and the probate of his will the widow was appointed general guardian of the infants. The question arose whether the property, which, under the terms of the will, to which it is unnecessary to refer, was given to the infants should be paid over to the .mother as their general guardian or to the three persons named as guardians in the clause of the will quoted, who are the appellants in this case. The surrogate directed payment of the funds to the general guardian, and this direction has been affirmed by the Appellate Division. That, under the statute of 1893 (Ch. 175; subsequently re-enacted in Domestic Relations Law, ch. 272, Laws 1896), which constitutes a married woman joint guardian of her children with her husband, and restricts to the surviving parent the authority to appoint a testamentary guardian, the appointment of the appellants as guardians of the persons and property of the infants was void, cannot be questioned. But this concession does not dispose of the controversy. While the testator could not say who should have the custody and control of the property of his infant children generally, he had entire power to say who should have the custody and control during their respective minorities of that part of his *359 property that lie chose to give to them. He might have created a trust in her favor during the minority of each child, in which case the legal title during the trust term would be in the trustee. He was not, however, bound to adopt that course. He could leave the title in the minors and create a power in trust for the control and management of the fund. A power may be created for any lawful purpose and to do any act which the grantor might himself do (Real Property Law, sec. 111; Belmont v. O'Brien, 12 N. Y. 394; Downing v. Marshall, 23 N. Y. 366), and the statute equally applies to powers over personalty. (Cutting v. Cutting, 86 N. Y. 522.) Therefore, had the testator instead of appointing the appellants guardians of his children with the direction “ that all funds and securities belqnging to each of my children shall be received, held and paid out by them jointly as said guardians,” said in express terms, “ I direct said persons to have the same care, custody and control during their minority over the property I give my children that a guardian would have,” it would have created a valid power in trust (Blanchard v. Blanchard, 4 Hun, 287; affd., 70 N. Y. 615), and to my mind he has said substantially the very same thing. There have been several cases in which a testator not legally authorized to do so has assumed to appoint the guardian of minor beneficiaries under his will. In such cases, with but a single exception, so far as I can find, the appointment of a guardian over such property as the testator bequeathed or devised has been upheld either as a trust or a power in trust. The exception is Brigham v. Wheeler (49 Mass. 127), where a testator, having given real and personal property to the children of his nephew, assumed to appoint their guardian. It was held that the appointment was void and the will could not be construed so as to create a trust estate in the guardian. The case was disposed of summarily without any review of the authorities. On the other hand, in Fullerton v. Jackson (5 Johns. Ch. 278), where a grand-. father assumed to appoint his executors guardians of his *360 grandchild, Chancellor Kent held that while the grandfather had no such power he had a right to annex conditions to his gift, and that the rents and profits of the property devised should remain in the hands of the executors. In Post v. Hover (33 N. Y. 593) a testator appointed a guardian of minor grandchildren and directed that his son, whom he named guardian, should have the control and management of the real estate devised to the grandchildren during their minority. It was held that while the appointment of guardian wras void, and no valid trust created, still there was constituted a good power in trust. Judge Denio,, said : “A grandfather, it is true, has no power to appoint a guardian for his grandchildren by last will. This testator thought otherwise, and by assuming to do so, he may be supposed to indicate-the kind of authority which he intended to commit to his son John. ITe intended to confer such a charge of, and power over, the estate, as a guardian may rightfully exercise over the lands of his ward.” In Matter of Lichtenstadter (5 Dem. 214), where a testator appointed a guardian of his grandchild, it was held by Surrogate Hollins that though the attempt to create a guardian was abortive the person appointed was a trustee and entitled to the possession of the fund without obtaining letters of guardianship. In Blake v. Leigh (Ambler’s Rep. 306) it was held that “ the grandfather has no power to appoint guardians of his grandson, it being a right vested in the father; but anyone can give his estate on what conditions he pleases.” In Grimsley v. Grimsley (79 Ga. 398) it was held that under the appointment of one as testamentary guardian of children of a person other than the testator the appointee became a trustee for such children and held the property devised as such. In Gamp v. Pittman (90 FT. C. 615) it was held that the appointment by a testator of a testamentary guardian whom he was not authorized to appoint operated to define the power and authority over the estate conferred upon the guardian. In Vanartsdalen v. Vanartsdalen and Cornell’s Appeal (14 Pa. St. 384) there was a similar attempt on the part of a testator to appoint a guardian of his *361 grandchildren. The contest was between the testator’s son-in-law, the father of the infants, and the testator’s son, whom he appointed guardian of the children. The son-in-law sought to get possession of the property devised to his children by the testator. He was defeated, the court saying : “ Here the testator devises an estate to his grandchildren, and for satisfactory reasons best known to himself chooses to commit the custody and management of it to his own son instead of to his son-in-law. It does not need the authority of Lord Hard-wicks (doubtless referring to Blake v. Leigh) for the position that any one can give his estate on what conditions he pleases.” In Bush v. Bush (2 Duvall [Ky.], 269) it was held that while no other person than a parent can appoint a guardian by will,' any other testator may appoint a trustee to take charge of a bequest made to infants. It. thus appears that with the exception of the Massachusetts case the uniform current of authority sustains'the validity of the appointment of the appellants to exercise over the property bequeathed by the testator the same power as would be exercised by a legally constituted guardian. The orders of the Appellate Division and of the Surrogate’s Court should be reversed and the fund be directed to be paid over to the appellants to be held by them during the minority of the infants respectively, with costs to appellants to be paid out of estate.