Kellinger v. Roe , 7 Paige Ch. 362 ( 1839 )

The Chancellor.

The proper person is not made a party to this appeal, so as to enable me to either affirm or reverse the order appealed from. The object of the legislature in authorizing the surrogate to direct notice of the hearing to be given to the relatives of the infant, residing in the county, was not to make such relatives parties to the proceeding; but merely to enable them to attend, if they thought proper, for the purpose of giving the surrogate the requisite information as to the value of the infant’s property and as to the propriety of appointing the applicant the guardian of the infant. And the surrogate may examine them or any other persons on oath as to any matter connected with the application, or as to the propriety of granting the same. But the relatives who appear for the purpose of objecting to the appointment cannot themselves be drawn in to litigate the question with the applicant in their own names, as parties to the proceeding, either by appeal or otherwise. The surrogate may, if he thinks proper, appoint one of such relatives, or any other suitable person, the guardian ad litem of the infant in relation to such application ; for the purpose of procuring the requisite proofs, so as to prevent an improper appointment of a guardian, or the taking of insufficient security in reference to the property. And if the appellant thinks himself aggrieved by the denial of his application, and wishes to review the decision of the surrogate by appeal, the appeal bond must be given to the infant himself, as the respondent; and this court will then, upon the application of the infant, or of some of his relatives in his behalf, appoint a proper person as guardian ad litem to protect his rights on the appeal ; and to answer the petition of appeal. Where the infant or his relatives do not apply to get a guardian ad litem appointed within a reasonable time for that purpose, the court will appoint one, on the application of the appellant, pto rotect the infant’s rights on the appeal.

As these respondents have been improperly made parties to this appeal, and thus subjected to the expense of defend- ^ samej the appeal must be dismissed with costs.