Duncan v. Mutual Life Insurance

Callaghan, J.

The sole question involved here is the construction and effect of section 2650 of the Code of Civil Procedure. It was changed by chapter 520 of the Laws of 1914, amending the Surrogate’s Court Act (Laws of 1914, chap. 443), which went into effect September 1,1914. So much of that section as is pertinent to this inquiry is as follows: “Where the property of the infant does not exceed the sum or value of $2,000, as shown by the petition, the surrogate may, in his discretion, make an order dispensing with such bond wholly or partly, and directing that the guardian collect and receive the moneys and property of his ward jointly with a person designated in the order, and that all such moneys and other property, so far as the same are conveniently capable of deposit, shall be deposited in the name of such guardian, subject to the order of the surrogate, with such bank, savings bank, trust company, or safe deposit company as shall be designated in such order, and shall be withdrawn or removed only on the order of the surrogate. The letters issued thereupon shall contain the substance of the order.”

It appears that the defendant was indebted to the infants Florence A. Larson and Elfrida A. Larson on a policy of life insurance, in the sum of fifty dollars. On the 22d day of September, 1914, one Axel Larson was duly appointed general guardian, jointly with J. Frank Belford, of the infants. The letters of guardianship recited that the said Axel Larson was appointed: “ General guardian of the persons and property of the said infants and that the general guardian jointly with J. Frank Belford collect and receive the moneys and property of the said infants and that all such moneys and properties so far as same are conveniently capable of deposit, be deposited in the name of said general guardian, subject to the order of the surrogate, with certain depositaries therein mentioned.”

The insurance company made payment of the sum of fifty dollars by a check drawn to the order of Axel Larson individually and as general guardian, without including the name of J. Frank Belford, the person designated in the order to serve jointly with said Larson. An inspection of the letters of guardianship would have disclosed the limitation placed upon the guardian by the surrogate, which was that he was to act jointly with another party. If the defendant paid the amount involved here without having ascertained the authority of Larson to receive the money or without closely inspecting the letters of guardianship, it then is entitled to no consideration because of the omission to make proper inquiry as to who was entitled to receive the money of these infants.

It is difficult to determine upon what theory the defendant seeks to prevent a recovery in this action. No contention is made that the statute is invalid or that the surrogate in naming the guardian with the limitation expressed in the letters exceeded his authority, and it is conceded that the letters contained a proper reference to the provisions of the statute.

The question as to the power of general guardians over the property of their wards is not involved in this controversy. The legislature undoubtedly has the right to prescribe forms of guardianship. We are not concerned on this appeal with the question as to whether or not the legislature acted wisely in enacting this statute. It is sufficient for us to say that it had the power to make the law and the courts are bound to follow it.

Judgment affirmed, with twenty-five dollars costs to the respondent.

Clark, J., concurs.