
    Bertha Wuesthoff et al., App’lts, v. The Germania Life Insurance Co., Resp’t.
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Insurance—Life—Construction of policy—Guardian—Authority TO RECEIVE PAYMENT OF POLICY.
    The policy issued by defendant company provided that in case of the death of the mother of Ihe plaintiffs before the death of F. Wuesthoff, the insurance, upon his death shall be payable to her children for their use or their guardian, if under age * * * after due notice and proof of the death of the said Frederick Wuesthoff.” Held, that the contract meant a guardian legally authorized to receive and discharge the debts. That a. guardian possessing this authority, whether a general or chancery guardian, a testamentary guardian or, a guardian ad litem, is a guardian to whom-under the policy payment could be lawfully made.
    
      3. Same—What prerequisite to exercise op authority by guardian under New Jersey statutes.
    Section 1 of Revision of New Jersey statutes, page 464, was intended to define the general powers of a testamentary guardian, and section 48, page 762, was intended to prohibit and suspend the exercise by a testamentary guardian of the functions of his office until he should signify his acceptance of the office and execute the bond required thereby. Under the latter, the giving of security is a necessary qualification and prerequisite to the exercise of any authority over the estate of the ward
    3. Guardian—Testamentary guardian—Right to appoint statutory— Power op legislature.
    The right to appoint a testamentary guardian depends on statute and the legislature may not only regulate and restrict the power of appointment, but may define, limit and regulate the authority of the guardian and prescribe the conditions under which it shall be exercised.
    4. Same—Law op this state does not govern guardian appointed in ANOTHER STATE.
    The defendant cannot invoke the statutes of this state defining the powers of domestic guardians to justify a payment to a guardian appointed under a foreign jurisdiction who by the laws of the sovereignty appointing him was not authorized to receive it.
    5. Same—Power and authority local and circumscribed by government APPOINTING.
    The general rule is that a guardian appointed by virtue of the statutes of another state cannot exercise any authority here over the person or property of his ward. His rights and powers are strictly local and circumscribed by the jurisdiction of the government which clothed him with his office.
    ■6. Seal—Will—Effect op seal.
    The unnecessary addition of a seal does not change the essential character of an instrument or justify the treating of what would otherwise be only a will as in part a will and in part a deed.
    Appeal from a judgment of the general term of the superior court of the city of New York affirming a judgment of the trial term in favor of defendant dismissing the complaint upon the merits, with costs.
    
      Charles B. Meyer, for app’lts; Edward Solomon and William B. Hornblower, for resp’t.
   Andrews, J.

Two questions are presented; first, as to the validity of the payment made December 19,1877, by the defendant to Eliza Wuesthoff, the testamentary guardian of the plaintiffs, of the amount of the policy on the life of their father, Frederick Wuesthoff, and second, assuming that such payment was not a valid discharge of defendant’s obligation under the policy, whether the plaintiffs can now maintain an action to enforce the defendant’s liability.

The policy provides that in case of the death of the mother of the plaintiffs before the death of Frederick Wuesthoff, the insurance, upon his death “ shall be payable to her children for their use, or to their guardian if under age, payment to be made in sixty days after due notice and proof of the death of the said Frederick Wuesthoff.” Frederick Wuesthoff, died at Newark, New Jersey, August 28. 1877. He resided there in 1864, when the policy was issued, and continued to reside there until his death. The policy recites his residence at that place. His first wife, the mother of the plaintiffs, died in 1870. He remarried and by his will, executed under seal, August 16, 1877, which was duly proved and recorded in New Jersey, he devised all his real and personal property to Eliza F. Wuesthoff, his wife by his second marriage, and appointed her sole executrix of his will and also the guardian of his three infant children (the plaintiffs), the eldest being then of the age of about sixteen years. On the 14th of September, 1877, Eliza F. Wuesthoff, as guardian, served on the defendant notice and proof of death of Frederick Wuesthoff, stating the date and place of his death, and that she, as guardian for the children, was the legal owner of the policy. Upon the request of the company she also furnished proof of the death of Amalie Wuesthoff, the wife of Frederick Wuesthoff by his first marriage, and the names and ages of her children, and also delivered to the company a certified copy of the will. Thereafter, December 19,1877; the defendant paid to Eliza F. Wuesthoff $5,000, the full amount of the policy, taking her receipt as guardian.

Eliza F. Wuesthoff, after the death of her husband, qualfied as the executrix of the will and assumed the administration of his estate, but she never formally signified her acceptance of the office of guardian or gave a guardian’s bond

There can, we suppose, be no doubt that the plaintiffs were the persons, who by the contract of insurance in the situation existing at the time of the death of Frederick Wuesthoff, were entitled to the benefit of the insurance. They were the legal beneficiaries of the fund The contract of the defendant was in legal effect a contract to pay to the plaintiffs in the contingency which happened, and the clause providing that payment should be made to ‘ their guardian, if under age,” did not change the force or effect of the obligation. It expressed in terms what in the absence of express words would be the legal consequence, that an obligation for the payment of money to infants may be discharged by payment to a guardian. The qualification that the guardian must be duly authorized to receive the payment is implied. It would be contrary to the nature and object of the contract to construe it as authorizing payment of a debt due to infants to be made to a person, who, although he might in a formal or even in a legal sense be a guardian, nevertheless had no authority as such to collect or receive the money or debts due to the ward. We think it cannot be questioned that the contract to pay the' guardian of the infant beneficiaries, means a guardian legally authorized to receive and discharge the debt, and that a guardian possessing this authority, whether a general or chancery guardian, a testamentary guardian or a guardian ad litem, is a guardian to whom, under the policy, payment could be lawfully made. The payment upon which the defendant relies was made to a testamentary guardian.

The power of a father to appoint a guardian by deed or will was originally given by statute (12 Chas., 11), which has been re-enacted in most of the states and extended in some of them so as to embrace the mother. The power to appoint by deed is construed as meaning a testamentary instrument in the form of a deed, to operate only after the death of the parent (2 Kent’s Com., 225). But the power is statutory and does not exist in the absence of a statute conferring it. The power of a testamentary guardian, when not restricted, extends to the control of the person of the ward and the custody and management of her real and personal property (Chapman v Tibbitts 33 N. Y., 289). But as the right to apjmint a testamentary guardian depends on statute, it follows that the whole subject is within the control of the legislature, and it may not only regulate and restrict the power of appointment, but may define, limit and regulate the authority of the guardian and prescribe the conditions under which it shall be exercised.

The statute of New Jersey, in force August 16, 1877, provides that the father may by his deed executed in his lifetime, or by his last will and testament, in writing, dispose of the custody and tuition of his minor child or children during their minority, to any person or persons, and that the person or persons to whom the custody of such child or children may be given, shall and may (among other things) “take into his, her or their custody for the use of such child or children, the profits of all lands, tenements or hereditaments of such child or children, and also the custody and management of the goods, chattels and personal estate of such child or children, till his or her or their respective age of twenty-one years, and may bring such action or actions in relation thereto as by law a guard ion in socage might do.” Revision of New Jersey Statutes, 464, § 1.

By another section, it is provided as follows: “Every guardian appointed by last will or testament, which shall be legally proved and recorded, shall, before he exercises; any authority over the minor or his estate, appear before the orphans’ court and declare his acceptance of the guardianship, which shall be recorded, and shall give a bond with such sureties and in such sum as the said court may approve of and order, for the faithful execution of his office, unless it is otherwise directed by the testator’s will.” Pasee 762, § 48. The will of Frederick Wuesthoff gave no direction on the subject, and it is conceded that Eliza F. Wuesthoff, the guardian, had not at the time of receiving payment on the policy declared her acceptance of the guardianship, as required in this section, nor had she given any bond or security as guardian, and that no bond or security has ever been given.

It is insisted in behalf of the defendant that the authority of the guardian under the New Jersey statute is derived from the will or deed appointing her, and that by force of the will and the, section of the statute first cited, Eliza F. Wuesthoff, immediately on the death of her husband, was vested with the character of guardian, or at least she became such on assuming to act as guardian, and could without further qualification lawfully receive and discharge the debt owing by the defendant. This contention wholly ignores section 48 as a limitation upon the powers of a testamentary guardian, which requires the guardian to declare his acceptance of the guardianship in the orphans’ court and the execution of a guardian’s bond “before he exercises any authority” over the person or estate of the minor. Section 48, it is claimed, is directory merely, and a compliance with its provisions, it is insisted, is not a condition precedent to the right of a guardian to collect and discharge a debt due to the ward.

The distinction which in the construction of statutes is sometimes made between directory and mandatory provisions, proceeds upon the supposed intention of the legislature, and a discrimination between the essential and the immaterial or non-essential provisions of the statute, or where the statute relates to the powers and duties of officers, between those parts which are intended as a mere direction to the officer, and those which relate to and concern his substantial authority. The exercise by courts of a power to disregard a particular provision of a statute on the ground that it is directory merely, is a delicate one and should be applied with great caution. The intention of the legislature is the cardinal consideration in the construction of statutes, and whether a particular provision is mandatory or directory is to be determined from the language used and the purpose in view. Construing the various sections of the New Jersey statute together, it is plain we think that the first section quoted was intended to define the general powers of a testamentary guardian and that section 48 was intended to prohibit and suspend the exercise by a testamentary guardian of the functians of Ms office until he should signify his acceptance of the office and execute the bond required thereby. Obviously the object of the legislature in requiring the guardian to give security was the protection of the ward. The legislature was dealing with the interests of a class especially entitled to the protection of the law. It was a wise safeguard to require that a guardian before intermeddling with the estate of the ward should give security for its faithful administration, unless the parent dispensed with this precaution. It is impossible to suppose that the legislature in enacting section 48 intended simply to impose upon the guardian the duty of giving security, and not to make the duty imperative. This section is to be construed as if written in the prior section, and so read, it makes the-giving of security a necessary qualification and a prerequisite to the exercise of any authority over the estate of the ward. ■

Passing this question, it is further insisted that the capacity of the guardian, Eliza F. Wuesthoff, to collect and discharge the debt owing by the defendant is to be measured and determined by the powers of testamentary guardians appointed under the law of New York, the domicile of the debtor, and the place where the policy was issued and where the debt was paid. The law of this state as it stood in 1877 at the time of the death of the insured and of the payment of the policy, authorized a father by deed or last will to dispose of the custody of his infant child, during his minority, and declared that every such disposition from the time it should take effect shall vest in the person so appointed, all the rights and powers of a guardian, with the right to the custody and management of the personal estate of the ward. 2 Rev. Stat. 150, chap 8, title 3, §§ 1, 2, 3. But no formality was required to complete the title of the guardian nor was he required to give any security.

It is doubtless true that if this had been the case of a domestic testamentary guardianship, the payment made by the defendant would have been authorized. But the New York statute relates exclusively to domiciliary guardian-ships under wills or deeds of residents of this jurisdiction. The defendant cannot invoke the statute defining the powers of domestic guardians to justify a payment to a guardian appointed under a foreign jurisdiction, who by the laws of the sovereignty appointing him was not authorized to receive it. The general rule is well settled that “a guardian appointed by virtue of the statute of another state cannot exercise-any authority here over the person or property of his ward. His rights and powers are strictly local and circumscribed by the jurisdiction of the government which clothed him with his office.” Woodworth v. Spring, 4 Allen, 321; Morrell v. Dickey, 1 Johns. Ch., 153; Sto. Con. Laws, § 499.

A debtor in this state may pay a foreign guardian and the payment will be good if the guardian by the law of the state from which he derives his appointment is authorized to receive it. Parsons v. Lyman, 20 N. Y., 103.

The defendant when the payment was made was fully apprised of the facts. It was informed that the deceased was a resident of New Jersey at the time of his death and that the guardian was a testamentary guardian appointed in and mider the laws of that state, and the defendant was chargeable with notice that the powers of the guardian were regulated by and depended upon the law of the domicile of the plaintiffs. The payment was at the peril of the defendant. The further claim that the appointment of Eliza F. Wuesthoff was by deed and not by will, and therefore that the case is not within section 48, which relates to a guardian appointed “by last will and testament,” is, we think, untenable. The claim is based upon the fact that the will of Frederick Wuesthoff is a sealed instrument. It is conceded that if the seal had been omitted the appointment would have been by will and so within section 48. But the intention that the instrument should operate as a will and that it was not delivered as a deed is conclusively established. It recites that it was a will. It was executed a few days before the testator’s death. It was left for safe keeping with the physician in whose office it was drawn. The unnecessary addition of a seal does not change the essential character of the instrument or justify treating it as in part a will and in part a deed.

The second general question relates to the remedy. The policy is payable “sixty days after the notice and proof of the death,” etc. It is urged that as no notice or proof of death was furnished except what was given by the guardian, the plaintiffs by repudiating her act in receiving payment» also, as a consequence, repudiated her act in giving notice, etc., so that they are left without any proof in the case of the performance of this precedent condition to maintaining the action. It is, we think, a sufficient answer to this proposition that while Eliza F. Wuesthoff was not by the appointment in the will and the death of her husband invested with any power to interfere with the infants’ estate before giving security, she nevertheless was nominally the guardian of the children and that'she had sufficient authority to justify her taking a step in the interest of the children, designed merely to accelerate the maturing of the claim on the policy, and also that the company accepted and acted upon the notice without objection.

The answer to the further point that there must be some person m existence authorized to receive payment before the company is liable, has already been indicated.

The guardian ad litem is a guardian within the meaning of the policy. He is authorized to represent the infants in collecting the claim and payment by the defendant in this action will be a full discharge of his obligation.

We are constrained, for reasons stated, to reverse the judgment below. It seems a hard case. The defendant on a new trial may be able to show that the money paid to the guardian has been applied in whole or in part, to the benefit and support of the infants, under circumstances which entitle the defendant to an equitable counter-claim.

The judgment should be reversed and a new trial granted.

All concur.  