
    Wilcox against Wilcox.
    A court of equity has jurisdiction and authority to take a minor child from a guardian appointed by the surrogate on the deatii of its father, and deliver it to the care and custody of its mother, where this is for the advantage of the child.
    In matters of equitable cognizance, the justices of the supreme court may exercise the same powers at chambers, which formerly the chancellor couM rightfully exercise out of term.
    
      Therefore, where a justice of the supreme court, on petition, praying that the custody and care of a minor child be surrendered by its general guardian to its mother, heard the matter at his chambers during vacation, and adjudged that the prayer of the petition ought to be granted, and made an order accordingly; Held, that the order was regular and valid.
    Ox the 22d of August, 1854, the respondent, Ann Augusta Wilcox, presented her petition, with accompanying papers, to the Hon. Charles Mason, one of the justices of the supreme court at chambers, praying that Morris Wilcox, the appellant, forthwith deliver Theresa Wilcox, her daughter, to the respondent; and that the respondent be allowed 'to take the care and custody of her. Justice Mason, on the same day, made an order requiring the appellant to show cause before him at his chambers in Hamilton, Madison county, on the thirty-first of the samfe month, why the prayer of the respondent should not be granted, and directing a copy of the order and papers on which it was granted, to be served on the appellant on or before the twenty-third of the same month; the papers on which the order was made, among other things, showed that the respondent and ■Nathan B. Wilcox, the son of the appellant, were married in 1838; that they had two children, Theresa and Charlotte, the former being nine and the latter seven years of age; that after the birth of Theresa, her mother was in too feeble health to take care of her, and she was placed and taken care of in the family of her grandfather, the respondent, where she afterwards always, except during short intervals, resided; within a few years after the birth of Theresa, her father failed in business and became intemperate ; and the respondent, with her other daughter, went to her father’s in Chenango county, and t here resided with him till his death, in 1852. The father of the respondent was of large estate, and by his will he made ample provision for her and her two children. Nathan B. Wilcox died in February, 1854, in Oneida county, without having made any legal disposition of the custody or guardianship of Theresa. A few days after his death the appellant, with whom Theresa was still residing in Oneida county, was appointed by the surrogate of that county her general guardian; the respondent was at this time temporarily absent from the state, and the appointment was made without notice to her or any others of Theresa’s relations.
    The appellant appeared before Justice Mason, pursuant to the order. Among other objections to the granting of the order prayed, he insisted that the justice had not power or jurisdiction to hear and decide the matter at chambers ; and that if the relief prayed could be granted on petition or motion, the application should be made at a regularly appointed term of the court. Justice Mason overruled the objection, and at a subsequent day, to which the matter was adjourned, he made an order sitting at chambers, by which he adjudged that the respondent was entitled to the care and custody of her daughter Theresa, and directed the appellant to forthwith deliver her to her mother, who was thereby authorized to take her into her care and custody. It was further provided by the order, that the same should be entered, and the papers on which it was made should be filed with the clerk of the county of Chenango, which was done. This order was affirmed at a general term of the supreme court, in the sixth district. Morris Wilcox, the grandfather of Theresa, appealed to this court, where the cause was submitted on printed points, by
    
      W. O. Merrill, for the appellant.
    
      H. R. Mygatt, for the respondent.
   Mitchell, J.

When the child was born the mother wa in very feeble health, and the father was unable to support it; on these accounts she was placed with her father’s father before she was a year old; there she has continued to live until she has attained the age of nine years, and, as might be expected, she has become attached to her grand parents, and unwilling to leave the home in which she has been brought up. In the meanwhile her father has died, and the ■mother’s father having also died has left ample means of support both to the child and to her mother; and.the latter is anxious to have the charge, of her child and to bring her up under her own care, that, by receiving her.attention and kindness, and associating with her and her .other daughter, this child might form an attachment to. both. The fact that tjie child prefers her grandfather to her .own mother and her own sister,' is an argument for changing her home, that her affections may b.e restored .to their natural channel, and that she may learn (by doing and receiving, acts of kindness to and ■ from those who are most nearly related.,to her) to love them most. Although the grandfather, procured himself to be appointed,- by the surrogate, the guardian of the person and estate of.the child, that does not interfere with.the power of the.court.of chancery to control its custody. The father is the natural.and. legal-guardian of the .child; still, the court will,- in a. proper case, interfere even, with his control. The mqtive to the exercise of this power is the benefit of the child,, and is. not to be defeated by one having a.mere legal title to the. custody of the child,, any more than it would be defeated, if the legal guardian should, abuse his trust. The court of chancery acted as the guardian of all infants; this was one of .its most. sacred, and most worthy and most important duties. Whatever might have been the origin of this power in England, it- passed to and was exercised by our court of chancery, without any dispute as to its jurisdiction.

It is specially important that the court should always be open to hear such matters, and accordingly this was one of the. matters which were .heard -by the chancellor at chambers, even in contested cases. The. same power, with the same .right and obligation to; exercise it at all times, has devolved on the supreme court, and may be exercised by the justices acting as a court at their chambers as well as at the stated special terms. The constitution is express that the supreme court shall have general jurisdiction in law and equity. (Art. 6, § 3.) Part of this “jurisdiction” of the court of equity was to exercise its powers at all times, although it also had * stated terms; and' thus the constitution devolved on the supreme court," until it should • be altered pursuant to the power vested in the legislature; to alter and regulate the jurisdiction and proceedings in law and equity." (Const., art. 6, § 5.) It needed no further legislation to vest this power in the supreme court; it was transferred there by the constitution, and continues there until it shall be taken away by some express or clear provision of law. So far from doing this, the legislature has confirmed it. The judiciary act of 1847 declares that the supreme court shall possess the same1 powers and exercise the same jurisdiction as was then possessed -by the supreme court and court of chancery; and that the-justices of said court shall-possess the powers'and exercise the jurisdiction then possessed by the justices of the supreme court, chancellor, &c., so far as the powers and jurisdiction of said courts and officers should be consistent with the constitution and the provisions of that act. (Laws of 1847, 323, § 16.) Certainly there was no intention in this law to abridge any of the powers exercised before by. the chancellor, or to prevent the justices of the present supreme-court from exercising any powers which the chancellor before exercised, and in the manner and at the times in which he exercised it. Unrestricted as his jurisdiction was as to time" and place, so it was to continue and to pass to the present supreme court and its justices. Not one, it is believed, ever doubted that this was the true construction of the law so long as the court acted under the judiciary act alone'; and it cannot be doubted that this construction was.acted on in innumerab' e instances. Has the Code, then, made any alteration in this respect? It has not repealed this part of the judiciary act that still remains in force, and is a recognition of the powers which are daily exercised by the court. The Code does not profess to limit the powers of the court, nor to define all the cases in which it may act, any more than it professes to furnish a complete guide for the courts in all cases of practice or pleading which can occur. It lays down certain rules of practice and pleading, and so far as those rules extend it is absolute; but, in cases left unprovided for by the Code, th'e courts are left to their former practice as their guide. So it also provides for certain special and general terms of the court (Code, §§ 15, 17); but this does not interfere with the powers of the court to act in equity matters at other times and places. . A like provision was made, under the old system, for stated or special terms of the court of chancery (2 R. S., 176, §§ 48, 51, 53, 56), yet its power to be always open still remained in force. This was part of its jurisdiction, or, as the term implies, of its power “ to declare the law,” which was expressly preserved by the judiciary act. The special terms' are prescribed, not to prevent the former practice of the court in equity cases of .being ever open for them, but to impose a special duty on the judges then to be present at a.certain place to hear everything that might be lawfully brought before them, without the necessity of a previous application to the judge, as is necessary when he hears the case at chambers.

The judgment should be affirmed, as well on the merits as on the question of regularity.

Wright, J. (Dissenting.)

On the petition of the respondent for the custody of her infant daughter, a justice of the supreme court, at chambers,- adjudged that she was entitled to its custody, and ordered that the appellant (its grandfather and guardian) forthwith deliver it to the mother. On appeal to the general term the order or decree was affirmed. The disposition of the custody of the child, in respect to its interest, and on the merits, I am inclined to think was correct; and the only question is as to the power of the judge, sitting at chambers, and not at any special term of the court, to make the order. If he possessed the power, we should affirm his order; if not, and he was without jurisdiction or acquired none, it ought not to stand. The question, therefore, is quite important, as our decision in its consequences will reach far beyond the present case.

It is conceded that the late court of chancery of this state' had the power, on petition, to entertain a proceeding and make precisely such an order as is now the subject of review; and by the constitution of 1846, and the judiciary act of 1847, the power is vested in the supreme court of the state. (Const., art. 6, § 3; Laws of 1847, 323, § 16.) The office of chancellor was abolished, and the same powers and jurisdiction as were possessed and exercised by the court of chancery conferred on the supreme court. There is no doubt, therefore, that the present supreme court, as a court, is clothed with this branch of equity jurisdiction. There are thirty-two justices, any one of whom may hold the court, and at a regular term thereof take cognizance of either legal or equitable proceedings. But the old court of chancery has not given place to thirty-two distinct equity courts, with a like number of chancellors. The chancellor’s court was always open, not only for the issuing and return of process, but for other purposes. The power to appoint stated and special terms was lodged with the chancellor, and he might alter them at pleasure.' The only statutory restriction on the power was that at least two stated terms should be held in the city of Albany, and two in the city of New-York, in every year. (2 R. S., 176, § 48.) If it be true that the present supreme court is always open, and a judge thereof may exercise his judicial functions and powers at times and places other than those fixed by law, in cases not expressly sanctioned by the legislature; if he may hold a court of equity at any time and in any place, and make orders and decrees in equitable proceedings; then was this proceeding properly entertained at chambers by. Judge Mason, and liis order became-a judgment or order of the supreme court, and, I think, not-reviewable on the merits.

I am of the opinion, however, that the order was without authority, and for the reasons that I shall proceed briefly-to state. -Though the present supreme court possesses the powers of the old court of chancery, and the justices of that court have the power of the late chancellor, that power must be exercised at a regularly appointed term of the supreme court, unless in cases where the legislature has authorized an act to be done by a judge out of -court. This at least, has been the -generally received opinion heretofore of-the judges of-that court. All suits.and proceedings in .equity are to be first heard and determined, and orders and decrees made at a special term -of the supreme court. (Judiciary act, Laws of 1847, 325, § 20.) In the first judicial district, but in none other, a motion which is defined to be an application for an order, may be made to a judge or justice out of court. (Code, § 401.) A motion to change the venue cannot be made at chambers, except in the first district. (Schenck v. McKie, 4 How. Pr. R., 248.) An order of a judge made at chambers, staying proceedings beyond the time limited by statute, is an excess of power beyond the statutory limitation, and void. The supreme court, unlike the late court of chancery, is not always open, except fo.r -the issuing and return of process. (Laws of 1847, 335, § 57.) It is not open for general purposes. The places for holding the circuits and special terms of the supreme court, •are those designated -by the statute for holding county and circuit courts. (Code, § 24.) The times are fixed by the judges of each district pursuant to law. The times and places in the respective districts are to be biennially designated. (Code, § 22.) All courts must be held at the places fixed by law, and at the times appointed by the judges, or in case of extraordinary terms, by the governor. (Code, §§ 22, 23.) They cannot be opened or held at any other place or time, and are never open for the transaction of business,, or the hearing and determination of suits or proceedings in equity, or the making of orders or decrees therein until the time appointed. A justice of the supreme court, holding a special term, and in court, may entertain an equitable proceeding to dispose of the custody of an infant, and even order such infant to be taken from its guardian, who, bylaw, is entitled to its custody (2 R. S., 150, §§ 1, 2, 3, 9), but he cannot entertain such a proceeding out of court. He cannot open or hold court at any place or time, at the instance and pleasure of litigants. He might entertain proceedings at chamber^, Under the habeas corpus act, and if the child be illegally detained or imprisoned, order its release, for this the statute authorizes a j udge to do, and so also was the special power conferred on the late chancellor; but he cannot, at chambers, exercise the powers of the chancellor in respect to an equitable proceeding to obtain the custody of an infant not illegally detained, because that is not a place where a court is appointed to be held, and there is no court open at such place. He is not authorized to do the thing out of court. The disposition of the custody of infants is a branch of equity jurisdiction pertaining to the supreme court itself, and is not possessed, nor can it be discharged by one of th¿ justices thereof, except at a regularly appointed session or term. The court is not always open at his chambers, nor can he appoint a special term to be held thereat. Whilst, • therefore, there is no doubt of the authority of the supreme court to make an order respecting the custody of an infant, and even exercise the discretionary power Of taking it from its legally appointed guardian; and at an appointed term of such court, Judge Mason- might rightly have exercised -the -jurisdiction ; out of court, though a judge thereof, he was without authority. The order that he assumed to make was a nullity. It is urged that it is convenient that the judges of the supreme court should be allowed to hold courts, and exercise j udicial functions in special proceedings, at chambers, but the law not having authorized it it is a mere question of power, and there is no force in the argument of convenience. When the legislature shall authorize a judge of the supreme court to entertain suits and proceedings in equity at his chambers, and judicially determine the legal and equitable rights of parties, they may be deemed to possess the power assumed in this case, but not before.

The order should be reversed.

A. S. Johnson, Selden, Comstock, and Hubbard, Js., concurred in the opinion of Mitchell, J.

.T. A. Johnson, J., concurred in the foregoing opinion by Wright, J.

Denio, C. J., took no part in the decision.

Order affirmed.  