Matter of Whittemore. In the matter of the estate of John M. Whittemore, deceased

Kings County, Hon. ABRAHAM LOTT, Surrogate. November, 1888. Matter of Whittemore. In the matter of the estate of John M. Whittemore, deceased. A petition by a foreign general guardian for ancillary letters of guardianship verified by an attorney of such general guardian where there is no proof of tlxe power of the attorney to act other than his own declaration, is not sufficient under section 2838, Code Civil Procedure, to authorize the granting of such letters. Petition by Charles J. Green, a foreign general guardian of Virginia W. Green, an infant. Ancillary letters of guardianship were granted ex parte to Charles J. Green the general guardian of the infant, Virginia W. Green, residing in the state of Texas, the petition purporting to be made by Charles J. Green, but signed: “ Charles J. Green by Howard W. Bayne his attorney,” and verified by Howard W. Bayne in the same manner as a pleading would be verified by an attorney. The executors being desirous to pay over certain moneys belonging to the minor, refused to pay the same without an order of the court, on the ground that the petition upon which ancillary letters of guardianship had been granted, was insufficient to confer jurisdiction, as it was not signed by the general guardian himself as provided by § 2838, of the Code Civil Procedure. Howard R. Bayne, for petitioner. Henry W. Gaines, for Jno. M. Whittemore, Jr., and Fielding I. Whittemore, executors and trustees. [MAJORITY — The Surrogate.] The Surrogate. This matter comes before me on the petition of the general guardian of an infant, appointed in a foreign jurisdiction, for the payment to him of certain moneys bequeathed the infant by the will of the deceased. The petition is signed by one as attorney for the petitioner and is verified by the attorney. It is conceded that to sustain the application ancillary letters in this state are necessary. The executors upon the sole ground that, under § 2838 of the Code of Civil Procedure, ancillary letters could only be granted by this court upon the written petition of the foreign guardian, duly verified, oppose the application. The letters objected to have been issued upon a petition in the name of the guardian not signed by him but by attorney and verified by the attorney alone. Counsel have not submitted any authorities, and I have been unable to find any bearing on the question save the case of Russell v. Hartt, 87 N. Y. 19, where it was held, that, where a legatee and executrix named in a will, by a power of attorney duly executed, appointed another her agent and attorney in her name and place to present the will for probate, to have the same duly proved and to ask for and receive letters of administration, the attorney properly acted in the premises. The objection to the present application however, seems to me to be in the fact that there is no proof of the authority in the attorney to act, save in the declaration of the attorney, and while it might he sufficient if a power to act was produced, I suggest, that the guardian in order to avoid any objection as to his right to delegate his power could with equal facility sign and verify a new petition for ancillary letters. Application denied with privilege to renew.