In re the estate of Ogg , 4 N.Y.S. 341 ( 1888 )

The Surrogate.

Sarah D. Williams, the mother and natural guardian of the above named infant, heretofore petitioned this court for an order directing the guardian of the estate of said infant to pay over to her out of the principal thereof a certain sum for past and future maintenance. The guardian of the estate filed with the petition an affidavit corroborating the statements of" fact therein contained, and joined in the request that the prayer of the petition be granted. The infant, who is nineteen years of age, filed a similar affidavit. The matter was sent to a referee to take proof of the facts and circumstances set forth in the petition and report whether or not the prayer thereof should be granted. This report has been filed, in which he finds that that part of the petition may be considered and should be granted which prays for a weekly allowance to the infant’s mother during his minority, or, in other words, for future maintenance, but that part of the application relating to reimbursements for expenditures made by Mrs. Williams in the past, for past maintenance, should be denied. To this last finding the petitioner has excepted.

The position taken by the learned referee in his opinion, that the Surrogate has no jurisdiction in this proceeding to make an allowance for past maintenance, is erroneous. Where a mother of certain infants entitled to the principal of a sum of money on her death presented her petition praying for an order that a portion of the principal belonging to the infants should be applied to reimburse her for their past maintenance and to discharge of debts necessarily incurred by her for that purpose, and also to provide for their maintenance in the future, both applications were granted by the chancellor: Matter of Bostwick, 4 Johns. Ch. 105.

The Court of Appeals held, in Hyland v. Baxter, 98 N. Y. 610, that an allowance for past maintenance may be made to executors, trustees or guardians upon an accounting or upon petition. See, also, cases cited at page 615. Judge Andrews, writing the opinion, cites as authority for the position, Matter of Bostwick (supra).

The case of Welch v. Gallagher, 2 Dem. 40, cited by the referee, is not in point. There, the claim of the mother for past maintenance was disputed by the general guardian. In the case at bar the application, although in form that of the mother, may, as found by the referee, be considered as that of the guardian of the estate. The exception is sustained.

Let an order be presented referring back the matter to the referee, who will report what allowance should be made for past maintenance.