
    In the Matter of the Person and Estate of Harry Burt, an Infant. Carrie Burt and Others, Respondents; William Lynch, Appellant.
    Third Department,
    May 5, 1915.
    Guardian and ward — guardianship of infant of tender years.
    Appeal from a decree of the Surrogate’s Court appointing a general guardian of the person of an infant five years of age. The mother being dead, the father while on his deathbed gave the custody of the infant to his sister, with whom the infant still resides. The proceedings were instituted by the maternal grandfather of the infant, a man of advanced years. On all the evidence, held, that, although both claimants to the right of guardianship were well fitted for that duty, it was proper for the court to appoint the husband of the father’s sister.
    
      Appeal by William Lynch from a decree of the Surrogate’s Court of the county of Rensselaer, entered in the office of said Surrogate’s Court on the 31st day of December, 1914, appointing Frank F. Peterson general guardian of the person of Harry Burt, an infant. The appeal is on both the law and facts.
    
      Rockwood & McKelvey [George H. Stenacher of counsel], for the appellant.
    
      Young & Young [W. Chase Young of counsel], for the respondents.
   Per Curiam:

Harry Burt, the person whose custody we are now considering, is an infant about five years of age. Both of the parents of the infant are dead. The mother died when the infant was about two years old. About three weeks after the death of the mother the father placed the child in the Troy Orphan Asylum where he remained until October 6, 1914, when, at the request of the father made on his death bed, and pursuant to a written order signed by him, the child was taken by Mabel Burt Peterson, a sister of the father, to her house at Jamestown, N. Y., where he is living now. On petition of William Lynch, the grandfather on the mother’s side, proceedings were instituted in the Surrogate’s Court of Rensselaer county for the appointment of the petitioner as general guardian of the person of the infant. These proceedings resulted in the appointment of Frank F. Peterson, husband of Mabel Burt Peterson, the sister of the infant’s father — she being the same person into whose custody the child had been delivered by its father at the time of his last illness.

This is a strife for the possession of the infant between the relatives of the mother on the one side and the relatives of the father on the other. The evidence discloses that the parties to this controversy are all respectable and fairly well-to-do. Mr. Lynch, the grandfather on the mother’s side, is in receipt of a comfortable income and could, without doubt, support the infant properly; but he is sixty-five years of age, a man somewhat advanced in life, as is also Mrs, Lynch, his wife, the grandmother on the mother’s side. Frank F. Peterson, who has been appointed guardian, is forty-one years old and his wife, Mabel Burt Peterson, is ten years younger. They have no children. The grandmother of the child on the father’s side resides in the household of Mr. Peterson. The Petersons own their own home in Jamestown and live well and seem to be in good circumstances. Their house is new, having been built only about a year; it is steam heated and equipped with electric lights and a bathroom. There is a schoolhouse right near their home. Mr. Peterson is engaged in the monumental business at Jamestown. Considering all these circumstances we think the learned surrogate exercised his discretion wisely in appointing Mr. Peterson guardian of the infant. The welfare of the infant is the pole star which should guide courts in selecting a custodian for a minor child. In this instance we think this rule was observed by the surrogate. We say this, however, without any reflection upon the family of the mother of this child, for, as we have already observed, they are respectable people, in comfortable circumstances in life. The grandparents are, however, advanced in years and, in the natural order of things, even had Mr. Lynch been appointed guardian, he would have grown incompetent to bring up the child to manhood by reason of bodily infirmity. For this reason, principally, we think it was the wiser course to select Mr. Peterson to perform that duty.

The decree of the surrogate should be affirmed, without costs.

Decree of the surrogate unanimously affirmed, without costs.  