
    ESTATE AND GUARDIANSHIP OF ELIZA FEGAN.
    No. 4091
    June 15, 1872.
    Guardianship of insane wife__The husband cannot be allowed the custody of the person of his insane wife, when it appears that his friendliness towards her is very questionable; and that his motives for seeking to obtain letters are those of self interest.
    Construing section, O. C. P., 1763.
    
      G. T. Marye, Jr., for Fegan.
    
      Drake & Rix, for guardian.
   On the 13th day of January, 1871, after due proceedings thereto had, F. D. Cottle was duly appointed by this Court guardian of the person and estate of said Eliza Fegan, and letters were duly issued. On the 19th day of June, 1871, the said F. D. Cottle having resigned his trust and his resignation having been accepted, this Court duly appointed Thomas F. Yeager guardian in place of Cottle, and letters were duly issued, which are still in force. January 3, 1872, J. B. Fegan filed his petition for the revocation of the said letters of guardianship. The guardian, T. F. Yeager, filed objections; and upon the issues made, the case came on for hearing, and was heard on various days from April 2 to May 7, 1872, and submitted. From the hearing of the case, it appears that in October, 1863, the said J. B. Fegan and Eliza Fegan (then Eliza Eldridge, widow) intermarried in the City and County of San Francisco. He was a melter of metals, and she an assistant in a milliner’s store. They resided together in San Francisco until March, 1864. Their relations were unhappy, he having on some occasions used personal violence towards her. In March, 1864, he, being out of employment, went to Virginia City, Nevada, and obtained employment in mining; she continuing her service in the store and maintaining herself. They corresponded for a time, letters from him to her being shown of dates April 2, May 5, May 20, May 23, June 26, Dec. 9, 1864, and Feb. 10, 1865. The letters to June were such as a husband might write to his wife, but gave no indication of a desire to return or to have her with him. He remitted her some small sums of money. The letters of December 9, 1864, and Feb. 10, 1865, were coarse, vulgar and brutal in the extreme. He accused her of infidelity, and applied to her epithets of the utmost vulgarity. It has never been within my experience to read or hear more vulgar or obscene language than is contained in these letters. They could have been dictated only by a heart abandoned of all refinement and sensibility. He tells her that he will never live with her again nor see her, nor will he support her. He says, “If ever you put your foot on the mountain, I am off to some other wild home in the mountains. So take care of yourself in this world, for we may never meet again.” “ You had better look out for a home for the future, for with me you can never spend your days, for I have no love for you.”

Not long after the reception of these letters, the said Eliza Fegan became insane, and was placed by her sister, Mrs. Yeager, in the State Lunatic Asylum, where she remained about a year. She was then returned to San Francisco and taken care of and supported by her sister and Mr. Yeager, and has been ever since. J. B. Fegan continued to reside in Virginia City, and was successful in mining operations, and accumulated considerable wealth. He visited San Francisco every year at least once, and sometimes oftener, but did not inquire for, seek, or visit his wife, nor assist in her support. He says that he first heard in 1869 of her insanity; but then he made no effort to alleviate her condition. In 1871, her friends having heard that he had become wealthy, sent bills to him for medical attendance and support. These bills he at first repudiated, but afterwards offered smaller sums in settlement, which were accepted. He then in Dec., 1871, became impressed with the pretence that he had affection for his wife and could support her for less than she was being supported, and endeavored to communicate with her with a view to removal. The guardian, on her behalf, commenced an action in the Fifteenth District Court for divorce and division of the common property. This suit is still pending. The object of Mr. Fegan in this application to remove the guardian is too apparent to mislead. In his testimony he says, “I returned to San Francisco in Dec., 1871, for the purpose of procuring a suitable person to take care of my wife. My desire was to remove her from the care of Mrs. Yeager, for the reason that I believed she was not properly cared for, and was making unusual and extortionate charges against me for her care and maintenance. I desired to provide her with a good and comfortable home, and believed I could do so for much less than Mrs. Yeager had been charging.”

This asserted desire to care for his wife and provide for her a home, is all a pretence. His only desire, in my opinion, was, to obtain a revocation of the letters, to the end that he might control both sides of the divorce suit and make provision for his wife or not, as he pleased. There is not a word of truth in his pretended regard for her welfare. She has been well cared for by her relatives; and so long as he had no bills to pay, he gave himself no trouble about" the matter, not even to inquire for or about her; but as soon as he began to realize the legal consequences of his marital relations, he endeavors to manifest a tender regard for her. The pretence is too shallow.

The case of the petitioner is alleviated only by the skill and faithfulness of the counsel in endeavoring to present the matter in the best possible light for his client.

The petition of J. B. Fegan for revocation of the letters of guardianship issued to Thos. F. Yeager, is denied.  