
    In the Matter of the Judicial Settlement of the Account of Abbie O. G. Brigg and Hartwell A. Wilkins, as Executors of, and Trustees under, the Last Will and Testament of Benjamin L. Brigg, Deceased, Respondents. Henry Bischoff, Jr., and Kate M. Jenkins, Testamentary Guardians under the Last Will and Testament of Benjamin L. Brigg, Deceased, Appellants.
    
      Testamentary guardians—when a provision of a will in their favor is not a legacy hxii compensation for services—power of a father to appoint one gua/rdian of the person and another of the estate of a child.
    
    The will of a testator, which took effect at a time when a husband had authority to appoint by will a person who should have the custody of his children, provided that, in the event of his wife dying before him, certain persons should be the guardians of the persons of his infant children, and by another clause nominated the same persons guardians of the estates of such children, and directed that each of the guardians should receive for such services as he might be required to render, the sum of $500, to be paid to them by the executors.
    At the time of the testator’s death his wife was living, and but one of his children was an infant, and he reached his majority two and a half years thereafter and in the lifetime of his mother.
    
      Held, that the provision in favor of the guardians was not intended as a legacy, but as compensation for services which they might render as guardians of the estates of the testator’s infant children, and that no such services having been performed, the guardians were not entitled to receive the §500 mentioned in the will.
    
      Qncere, whether a parent may appoint a testamentary guardian of the person of his child, separate from the guardian of his estate.
    Appeal by Henry Bischoff, Jr., and Kate M. Jenkins, testamentary guardians under the last will and testament of Benjamin ■L. Brigg, deceased, from so much of a decree of the Surrogate’s Court of ¡New York county, entered in said Surrogate’s Court on the 23d day of June, 1898, as adjudges that said testamentary guardians have no standing in ' court as parties to the proceeding, and strikes out the objections interposed by them to the account herein; also from so much of said decree as adjudges that said testamentary guardians have no right to the legacies directed to be paid to them by the will of the testator, and disallows'their claim to the same, and also from so much of said decree as disallows their claim for an allowance to their attorney for his services.
    
      John A. Straley, for the appellants.
    
      John C. Gulick, for the executors, respondents.
   Rumsey, J.:

Benjamin L. Brigg, of the city of ¡New York, made his will in the year 1889, by which, after giving a few legacies which are not material here, he devised all the rest and residue- of his estate, real and personal, to his executors in trust, to receive the rents, issue, income and profits thereof and pay them to his wife during her life, and to pay to his sons, when they respectively should arrive at the age of thirty-five years, out of the principal of the estate, such sum or sums as his wife should approve of. The will further provided that if his wife should die before him, or after her death if she should survive him, the executors should divide his estate into two shares and pay the income of one share to each of his sons during his life, with directions to pay one-half of the principal to each son when he should reach the age of thirty-five years, and to keep the other half invested and pay the income to him during his life.

The will contained a further provision with regard to the payment of the remainder of the principal to the sons, which it is not necessary to consider.

The testator further provided that should his wife, Abbie Olivia Brigg, he deceased at the time of his death, he nominated Kate M. Jenkins and Henry Bischoff, Jr., to be guardians of the persons of such children as should not then have attained lawful age. By another clause of his will he nominated and appointed the same persons guardians of the estate of his children surviving him who should not, at the time of his death, have attained lawful age ; and he directed that each of the guardians aforesaid should receive for such services as lie might be required to render the sum of §500, such sum to be paid them by the executors or their successors.

Hpon this accounting, the two persons named as guardians insisted that the sum of §500 should be paid to each of them pursuant to the provisions of the will. This was refused by the surrogate, and from so much of the decree as refuses to pay them such sum the appeal is taken.

The testator died on the 15tli day of March, 1893. As the law stood on that day, he had authority to appoint by his will the persons who should have the care, custody and tuition of his children, but he did not attempt to execute this power unconditionally, but, In case his wife should not be living at his death, he nominates Kate M. Jenkins and Henry Bischoff, Jr., to be guardians of the person of such of his children surviving him as should not then have attained lawful age. As Mrs. Brigg survived the testator, the appointment of guardian of the person of his son did not take effect, and his wife, the mother of the son, became his guardian. As such, she was expressly authorized, as guardian of the person of the child, to take the custody and management of his personal estate and the profits of his real estate during the time of his guardianship, and to bring such actions in relation thereto as a guardian in socage might by law. (2 R. S. [9th ed.] 1896, 1897, §§ 1, 2, 3.) The appointment of the same persons to be guardians of the estate of his children was made by a separate clause of the will, but we are not aware of any statute which authorizes a parent to appoint a guardian of the estate of his child separate from the guardian of his person. It would seem, therefore, that the person who, by statute,, was the guardian of the child after the death of his father, was the person entitled to do all those acts which a guardian might, do under the statute. If it were necessary to the determination of this case, it might be interesting to examine further this-question whether it would be possible for a father to appoint by will one person as the guardian of his child, and another person as the guardian of the estate of that child. But it seems to-us that such an examination is entirely unnecessary. The will was-made in 1889. At that time each of his children was a minor, and if the mother had died before the testator, and the father had died during the minority of the children, each child would have been entitled to a considerable amount of money, of which the guardian would be required to take charge. • There was a reason, therefore, why a provision should be made by the father for the care and custody of his children and the guardianship of his estate, and it was-probably a wise provision of his will to fix their compensation. But the compensation was fixed only for such services as they might be required to perform as guardians of the estate of the two children, and not as a legacy; and it is quite clear from those words that the testator did not intend that the money should be paid to them unless-they actually performed, in the capacity of guardians, such services as guardians would naturally be expected to perform during the minority of their wards. Such services consist in taking care of the real and personal estate of the ward, and in nothing else; for, unless the ward has an estate of which the guardian may become possessed, and for which he is responsible, he cannot perform any services with regard to that estate. In this case, at the time of the death of the father, one of the sons had already reached his majority. As to-him, therefore, it was quite clear that no guardian could act. The other son, although yet a minor, being in his nineteenth year, was-not entitled to receive anything under his father’s will, either in possession or in remainder, during the time of his minority, unless it should happen that his mother died during that time. But his mother did not die, and the son became of age in two and one-half years after his father’s death. At that time the 'right of the guardians to act as such ceased. During the time that they were nominally guardians of the estate of this son they took possession of nothing; they incurred no responsibility about his estate; there was no estate with which they had any right to interfere; and it is not possible to conceive of any services which they could have performed in that regard. It is quite true that one of the guardians testifies that he was consulted by Mrs. Brigg about investments of the estate and about its management, but the estate about which he was consulted did not, nor did any part of it, belong to his ward ; nor was there any certainty at that time that the interest of his ward, which was entirely contingent, would ever vest in right or in possession. We think, therefore, that the conclusion of the surrogate, that no services were required of the guardians, in their capacity as such, during the short time that intervened between the death of the testator and the majority of his younger son, and that, therefore, they did not become entitled to receive the money which the testator intended as compensation purely for services which they might render in the performance of their duty as guardians of the estate, was correct.

So much of the decree of the surrogate as is appealed from must, therefore, be affirmed, with costs to be paid by the appellants.

Van Blunt, P. J., Barrett, Patterson and McLaughlin, JJ., concurred.

Decree affirmed, with costs to be paid by the appellants.  