
    
      The guardianship of Mary Elgin.
    The intent of the legislature has been to leave a female guardian of minors, liable to removal by the Surrogate, after her own marriage, lest her duties to the child might be forgotten in her obedience or affection to her husband. Without a strong case, however, this Court will not interfere to deprive a mother of guardianship.
   The Surrogate.

This is an application to revoke the letters of guardianship issued to Mary Elgin, on the person and estate of her daughter, Mary Elgin, junior, an infant of thirteen years of age. It appears that the mother has, since the issuing of these letters, intermarried with James Frost. The petitioner is a brother of the deceased father of the infant; and the application is made under the 34th section of the act of 1837 (chapter 460), which provides;

“ In case a woman marries, after being appointed an executrix, administratrix, or guardian, the Surrogate, on the application of any party interested, shall have power to revoke the appointment.”

Many reasons for such a revocation which existed at the time of this enactment, over thirty years ago, have disappeared in the progress of our later legislation.

In 1837, when this law was enacted, a married woman could not be appointed an administratrix' or a guardian. -She qould only be. an executrix with the consent of her husband, and this consent was required up to 1867. (See chapter 782, Laws of 1867, § 2.) She was allowed by the act of 1863, to become an administratrix, provided her husband’s consent was given. (Laws of 1863, chapter 362, § 4.) And the act of 1867 (as' above) dispensed with the husband’s consent as to .administrar ' tion, also. Harried women thus became entitled to the same rights as to the care of the estates of deceased persons, as single ones.. ■

In the matter of guardianship,- starting with the act of 1837 (above cited), we find no change attempted until the act of 1860, (chap. 90, § 9), which recognized for the first time the legal rights of a married woman in her own .child. It prohibited the father from appointing a testamentary guardian, as he could do theretofore, contrary to the mother’s wishes. Then came the act of 1867 (as ..'above), which made a married woman equally eligible to the guardianship of a child with a single one. But this last" act "does not in words repeal the section of the act of 1837, which gave the Surrogate the power to revoke her ' .’.guardianship in the event of a woman’s contracting a new . marriage after her appointment as guardian. - \ ,

'"V It: seems .probable that it was by intention, and not by s .omission,-that this-.power-was still left' to the Surrogate .,' by the act of 1867, The law intended to- exercise a • proper .caution for-.the benefit of the infants, .-fit was . . feared by our law makers, that a mother, in forming' anew .. alliance, might- bejinduced, to neglect,-'.1 ill treat or place : -: under improper - influences, the .children of her previous . .husband. .Though it was-intended to remove all legal r.i disqualifications .which appertained .to ■ her ‘status, as a :. married woman, there- was • a wholesome jealousy least the • duties to the child might ■ be forgotten in her obedience • i -or affection-to her.-new husband.: The power1 to revoke her.control,-.and to substitute- ther-relatives of the: child’s own father, is therefore wisely retained in judicial hands; but it is a power to be most carefully and sparingly.exercised.

In the present case, there is no adequate reason shown why Mrs. Frost should lose the control of her child. The person of the ward appears to be well cared for, and the accounts of the guardian show that the property of the ward is well invested. Mo ill treatment is proven against either the mother or the stepfather. And without a strong case, this Court will not interfere to deprive a mother of the custody and control of her child and her child’s property.  