
    In the Matter of the Guardianship of MARY WINKLEMAN, a Minor.
    Irregularity in Appointment op Guardian — "Want of Notice to Friends. The appointment of a stranger as guardian of the person and estate of an infant within three days after petition and without notice to the infant’s relatives or the persons having its custody, is gravely irregular.
    Refusal to Appoint Guardian — Presumption in Absence of Evidence. Where a transcript on appeal from an order refusing to appoint a person guardian on the ground of his unfitness failed to contain all the evidence : Held, that in the absence of tbe evidence, undisclosed testimony influencing the decision would be presumed.
    Appeal from the District Court of the Second Judicial District, Douglas County.
    Mary Winkleman, a minor, was left an orphan of the. age of two years, by the death of her father, Herman Winkleman, on Eebruary 5, 1874. Her mother had died shortly before. Sbe was an only child and entitled to an estate, consisting of real and personal property in Douglas County, of the value of about fifteen thousand dollars. Two days after the father’s death, J. R. Johnson of Genoa applied for letters of guardianship of the person and estate of the infant, setting forth that he had a friendly disposition towards the child and that she had no relatives by blood or otherwise in the United States, etc. Three days afterwards, in pursuance of his petition, letters of guardianship were issued to him; but there appears to have been no notice or citation of any kind or to anybody. On the same day Johnson qualified, giving a bond, as required by the order, in the sum of $20,000.
    On Eebruary 21, 1874, John C. Badenhoof presented to the district court a petition to have the letters of guardianship previously issued to Johnson set aside, and to be himself appointed guardian, setting forth his relationship to the minor, the letter to him left by her father, various grounds why the appointment of Johnson should be vacated, etc. Johnson opposed Badenhoof’s application; and the court made an order overruling the motion to vacate Johnson’s appointment and refusing to appoint Badenhoof on the ground that he was not a proper person. The only reasons shown by the record why he was not a proper person were because he was “unmarried,” “not of adequate property to answer for the minor’s estate, though tendering sufficient bonds;” and, though “a person of unblemished moral character, honest, temperate, industrious and of sufficient capabilities to manage the estate,” still “not a proper person to have the custody of said minor or the management of her estate.” On the other hand the order showed that Johnson was a man of family and of sufficient property to answer for the estate so placed in his hands, and in other respects a very proper person to have the care and custody of the child.
    Erom the order thus made Badenhoof appealed, and Johnson became respondent.
    
      Robert M. Clarke, for Appellant.
    I. The petition upon which Johnson was appointed did not state facts sufficient to give the court jurisdiction of either the person or estate of said minor. It did not show that said minor was an inhabitant or resident of the County of Douglas, or that she resided out of the State, but had an estate within the County of Douglas; nor did it show the existence of relations residing in the county, nor the name or names of person or persons having the custody of said minor. Comp. Laws, Sec. 833.
    II. The order appointing Johnson was made without any notice to the relations residing in the county and without any notice to the person under whose care said minor was. When ■ an application is made by a person • not connected with the minor by blood, notice to tbe relatives must be given; and for the same reason tbe custodian of tbe minor is entitled to notice also. 1 Hopkins, Cb. 226; 9 Paige, Cb. 202; 22 Barb. S. C. 187.
    III. Tbe dying wish of a parent should bave a preponderating influence in tbe selection of a guardian. 9 Paige, 202; 2 Barb. Cb. 216; 3 Brad. 409; 1 Brad. 143.
    
      Q. P. Harding, for Eespondent.
    I. Tbe court below did not err in overruling tbe motion to vacate tbe order. Tbe law authorized tbe order upon tbe .application of Johnson. Upon such application it was tbe duty of tbe judge to make due inquiry with a view to tbe discovery of relatives or persons in case of tbe minor. In tbe absence of any showing to tbe contrary this Court will not presume that “ due inquiry” was not made; and in tbe absence of any law fixing or limiting tbe time of such inquiry tbe Court will not presume that such inquiry could not bave been made before tbe order of appointment, simply because subsequent developments unearthed an immensely distant relative of tbe minor, and also a person with whom she was boarding?
    II. Was Badenboof injured by want of notice ? He applied to be appointed guardian and as a preliminary moved to vacate Johnson’s appointment. Tbe court below denied bis motion to vacate in form but ignored Johnson’s appointment so far as to bear Badenboof’s application. By this action no impediment was interposed against Badenboof. He was fully beard and the court below denied bis application.
    III. In view of tbe record this Court will not say that tbe court below abused its discretion in appointing Johnson, notwithstanding tbe letter of Winkleman, deceased, which could only be considered if other things were equal. It will not be claimed that this Court can either appoint a guardian or direct the district court whom to appoint.
   By the Court,

Whitman, C. J.:

On the fifth of February, 1874, Winkleman died intestate. On the seventh of the same month respondent petitioned to be appointed guardian of Mary, the infant daughter of intestate. On the tenth of the same month his petition was granted without notice to the relatives of the deceased, or to the persons under whose care the infant was at the time of her father’s death. From this order this appeal is taken, as maybe done under section 299 of the “act to regulate the settlement of the estates of deceased persons.” Comp. Laws, 192, Sec. 779. The action of the court in appointing respondent was at least gravely irregular, and must be reversed; and it is so ordered.

Appellant himself seeks the guardianship, showing as claim therefor that he is a distant relative of the infant, and the only one, save his brother, in the United States; a resident of the county where the infant and her property are; of good character; capable of managing the estate; presenting sufficient sureties; and backed by the following letter of absolute and touching confidence, penned by intestate on the day of his death:

“Genoa, February 5, 1874.
“A letter to Chris. Badenhoof.
“Dear Chris: In case that I should die, you shall become guardian for Mary. Do the best that you can. Sell everything and send it to the grand-parents, and see that the little one shall not afterwards remain in the country. You take her with you to Germany. She has money enough, if she only gets a good education. * * * * * * The old Bowers have not received anything yet. My things you and the old man can take. The papers are all in the trunk. I can’t write anymore. Do the best you can, with God’s assistance, for little Mary.
“H. WlNKLEMAN.
<<***#* The papers are all in the trunk. * * * * * Most of the things are on the ranch yet, and the keys to them are here in the trunk. See to it that the keys go into no other hands but Badenhoof’s ; deliver to him the letter and the keys.” The portions omitted, though only touching minutiae of business, still bear out the perfect trust with which the intestate resigned all of earth to the care of appellant.

That in the face of the proven facts and this letter, in itself absolutely conclusive save under some extraordinary adverse showing, his petition was denied, -would be a matter of surprise, were' it not that the transcript does not purport. to contain all the evidence. So when the district court, though presenting no basis therefor, finds, touching appellant, that he is “not a proper person to have the custody of said minor or the management of her estate;” it follows that this Court must presume that there was testimony undisclosed by the record, influencing the district court to its decision. Under such presumption it also follows that the order denying appellant’s petition must be affirmed. It is so ordered, without prejudice however to a renewal of his application.

It is unnecessary to discuss the peculiar proceedings under which an attempt was made to ratify respondent’s appointment; as the foregoing decision disposes of its subject matter; and in any view it was absolutely null.  