Hassard v. Rowe , 11 Barb. 22 ( 1851 )

Edwards, J.

The defendants in this case, while they were infants, were seised and possessed of a lot of land, and the buildings thereon, situated in the city of New-York. The buildings, which were insured at $3000, were destroyed by fire. The whole amount of the insurance money was collected and received by the plaintiff, who at that time was guardian of the defendants. After the fire, the plaintiff erected two houses upon the said lot, and in so doing expended the sum of $1490 of his own money, in addition to the sum received upon the insurance, and which he now claims that he is entitled to recover from the defendants.

As a general rule, a guardian is not authorized to dispose of the property of his ward, except for his maintenance and education, without the order of a court of equity. It has been held, however, that he may without such order, change the property of his Avard from real into personal, and from personal into real estate, in cases where there is no express statutory restriction, and Avhere the change is manifestly for the advantage of the infant. (Eckford v. De Kay, 8 Paige, 90. 2 Kent’s Com. 230.) But amongst the numerous authorities which were cited upon the argument, no one was referred to in which the rule has been so far extended as to embrace a case like the one before us. And, however equitable the claim of the plaintiff may be, we concur in the remark which was made by the late chancellor in the case of Putnam v. Ritchie, (6 Paige, 395,) that we are not authorized to introduce a new principle into the law of this court, without the sanction of the legislature.

[New-York General Term, March 8, 1851.

Edmonds, Edwards and Mitchell, Justices.]

The appeal must he dismissed with costs.

Edmonds, P. J. concurred.

Mitchell, J. dissented. Appeal dismissed.