Legal Opinion
In re Schmidt
New York Supreme Court
Decided April 13, 1894PublishedCited by 8 opinions
Appeal from surrogate court, New York county. Application by Henry W. Schmidt and Peter V. Stocky for letters of testamentary guardianship on the estate of George Ulmer Clausen, a minor. From an order denying the application, petitioners appeal. Affirmed.
1Opinion of the CourtFollett, J.
The power to appoint a testamentary guardian is statutory, and was first given by 12 Car. II. c. 24, § 8. In Ex parte Earl of Ilchester, 7 Ves. 370, Lord Alvanley said:
“It is clear, by the common law, a man could not by any testamentary disposition affect either his land or the guardianship of his children. The latter appears never to have been made the subject of testamentary disposition till the statute 12 Car. II.”
7 Pick. St. p. 474 ; 2 Kent, Comm. 225; 2 Steph. Comm. (8th Ed.) 310; 1 Bl. Comm. 462.
Hence such guardians are called in the books “guardians by statute” or “statutory…
Also in this document: Concurrence.
2Cases cited1 opinion
- People ex rel. Boice v. BoiceNew York Supreme Court · 1862
3Cited by8 opinions
- People ex rel. Byrne v. BrugmanAppellate Division of the Supreme Court of the State of New York · 1896
- In re the Judicial Settlement of the Accounts of the of the Last Will & Testament of BaumannNew York Surrogate's Court · 1920
- In re the Probate of the Will of WaringNew York Surrogate's Court · 1905
- In re the Estate of ThorneNew York Surrogate's Court · 1924
- In re the Judicial Settlement of the Account of KelloggAppellate Division of the Supreme Court of the State of New York · 1906
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