LEDWITH V. LEDWITH. The father has appeared in this proceeding, and does not oppose the granting, to some other person than himself, of letters of guardianship of the son's property. He suggests, however, that some private individual should receive this appointment, rather than the corporation nominated in the petition. Under the provisions of § 2826 of the Code of Civil Procedure, it is clear that the person who receives the appointment must be one who has been first nominated by the infant himself, in cases where such infant is fourteen years old or upwards. But I decline to sanction the claim which is made by petitioner's counsel, as to the proper interpretation of that section. He insists that, whenever a child has reached the age of fourteen years and has no testamentary or general guardian, he has an absolute right, even though his parents are living, to demand from the Surrogate's court the appointment of a guardian, and of whatever guardian he may be pleased to nominate, provided only that the nominee must, in the judgment of the Surrogate, be a proper person to execute the trust. I certainly shall not hold that an infant of fourteen years has this plenary authority to emancipate himself at pleasure from parental control, unless the language of the law forbids me to give it other interpretation, and such is by no means the case. This will appear from an examination of that section of the Code which has been already cited, and of the preceding sections in the same title. Section 2821 limits the authority of the Surrogate to cases and circumstances in which the Chancellor could act before the adoption of the constitution of 1846. Sec LEDWITH V. LEDWITH. tion 2823 requires that, if either the father or the mother of the applicant is known to be living, and his or her appointment is not prayed for, "the petition must set forth the circumstances which make the appointment of another person expedient." These italicized words are manifestly inconsistent with the claim which is here set up. For to require the insertion, in the petition, of any allegation as to the "circumstances" referred to in the section, would be utterly nugatory, if the fitness of the person nominated were the only question for the Surrogate's decision. A fair implication, from these words alone, is that, unless the appointment of some other person than the father or mother is shown to be expedient, no such other person should be granted letters. That this is the correct construction of that section appears also from the language of section 2825. Before making a decree, the Surrogate must be "satisfied that the allegations of the petition are true, and that the interests of the infant will be promoted by the appointment of a general guardian, either of his person or of his property." As far as the present application asks for the appointment of a guardian of property, it is granted. The respondent's objection to the corporation nominated does not seem to me to be well founded. Letters may issue therefore to the Union Trust Company. I do not, however, upon the evidence now before me, feel warranted in granting the prayer of the supplemental petition, asking for the appointment of a guardian of the person. I am not satisfied that the interests of the infant will be promoted by my appointing the person whom he has SUDLOW V. PINCKNEY. nominated. Indeed, for aught that the evidence discloses, there is no present necessity for the appointment of any person whomsoever. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-January, 1883. SUDLOW V. PINCKNEY. In the matter of the estate of JOSEPH C. PINCKNEY, deceased. Petitioner obtained a decree against decedent's executors, requiring them to deliver certain personal property to her, from which they took and perfected an appeal to the Supreme Court. Thereafter, and without showing service of a certified copy of a decree on the executors, she instituted proceedings to punish them for contempt.— Held, that the latter proceedings were premature, in the absence of proof of service of a copy of the decree, and, at any rate, were stayed by the appeal, being affected by the decree appealed from and embraced in the appeal (Code Civ. Pro., §§ 1310, 2577). The question of the status of an appellant, as such, is a matter for determination by the appellate tribunal. PETITION by Mary C. Sudlow, a daughter of decedent, for a warrant of attachment against Charles C. Pinckney and another, executors of his will, for contempt in disobeying a decree for the delivery of property. The facts appear sufficiently in the opinion. CULVER & WRIGHT, for petitioner. OSCAR FRISBIE, for executors. SUDLOW V. PINCKNEY. THE SURROGATE.-The petitioner asks for an attachment against the executors of this estate, because of their failure to obey a decree entered in this court on the 15th of December, 1882, requiring them to deliver to her certain personal property of the alleged value of about $4,000. 1. It is provided by section 2555 of the Code of Civil Procedure that, "in either of the following cases, a decree of the Surrogate's court, directing the payment of money, or requiring the performance of any other act, may be enforced by serving a certified copy thereof upon the party against whom it is rendered, or the officer or person who is required thereby or by law, to obey it; and, if he refuses or wilfully neglects to obey it, by punishing him for contempt of court.. (subdivision 4) where the delinquent is an executor relates to the fund or estate.” and the decree It does not appear that, in the present case, any certified copy of the decree has been served upon the executors, and until such service is made they cannot be adjudged in contempt. 2. But the answer herein discloses another fact, which is also fatal to this application. It appears that an appeal has been taken from the decree in question, and that the same has been perfected, by the giving of an undertaking, as required by section 2577 of the Code of Civil Procedure. Now, what is the effect of such appeal? “Except as otherwise expressly prescribed in this article," says section 2584 of the Code, "a perfected appeal has the effect (as a stay of the proceedings to enforce the decree or order appealed from) prescribed in section 1310 of the Code, with respect to a perfected appeal from a judg WHITLOCK V. WHITLOCK. ment." Section 1310, so far as it has any application to a case like the present, excepts from the stay only such matters as are "included in the action or special proceeding, and not affected by the judgment or order appealed from, and not embraced in the appeal." Everything included in the present proceeding is affected by the decree, and is embraced in the appeal. The pendency of such appeal excuses the executors, therefore, for their failure to comply with the directions of the decree. 3. I cannot pass upon the question of the appellant's status as such. That matter must be determined in the Supreme Court (Estate of W. R. Hynes, Daily Reg., March 30, 1882, and cases cited). NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-February, 1883. WHITLOCK V. WHITLOCK. In the matter of the estate of ANDREW M. WHITLOCK, deceased. The father of an infant has no right, as natural guardian, to receive a legacy bequeathed to the infant. Guardianship in socage, arises only where real property vests in an infant, The provision of the Revised Statutes (part 2, ch. 6, tit. 3, § 46), permitting an infant's legacy, "if under the value of fifty dollars," to be paid to the father, gives no authority to pay to the latter any portion of a legacy exceeding fifty dollars in amount. Decedent, by his will, gave to his nephew, an infant, $500, which the executors paid to the legatee's father, obtaining credit for the payment by the decree on an accounting before the Surrogate, to which the in |