
    (71 Hun, 195.)
    In re WILLETT. In re DANIELS.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Appointment of Guardian—Residence of Infant.
    An infant whose deceased parents were residents of Connecticut, and whose entire property was situated there, was removed from that state to New York by an uncle with whom she lived after her mother died and until her father’s death. The removal was made on the same day that the probate court of Connecticut had declared void, for want of testamentary capacity, the father’s will, in which the uncle was named as guardian. Held, that such infant did not “reside” in New York, within Code Civil Proe. § 2827, so as to authorize the appointment of a guafdian by the surrogate’s court of New York.
    Appeal from surrogate’s court, Kings comity.
    Application by Sophia A. Daniels for the appointment of a temporary guardian of the person of Jennie R. Willett, an infant, under the age of 14 years. Petitioner was appointed guardian, and Martha S. Willett and Edward S. Willett appeal.
    Reversed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Billings & Cardozo, (Michael H. Cardozo and Edgar J. Nathan, of counsel,) for appellants.
    Arnoux, Ritch & Woodford, (ffm. H. Amoux, of counsel,) for respondent.
   PRATT, J.

This is an appeal from an order of the surrogate of Kings county appointing the petitioner, Sophia A. Daniels, temporary guardian of the person of Jennie R. Willett, an infant, until said infant attains the age of 14 years. The guardian so appointed is the maternal grandmother of the infant, and resides in the city of Brooklyn. George W. Willett, the paternal grandfather of said infant, who resides in the city of New York, also made petition for the appointment of Mrs. Daniels as guardian. Martha S. Willett, the paternal grandmother, and Edward S. Willett, the paternal uncle of said infant, who reside in the city of Bridgeport, Conn., opposed the appointment of a guardian of said infant Both the father and mother of the infant were residents of Connecticut. The mother died on December 6, 1889. The father died on July 9, 1892. After the death of the mother, the infant lived with her paternal grandmother, in Bridgeport, until May 24, 1892, when, by the father’s direction, she went to her maternal uncle, Mr. Sanford, in Bridgeport, and lived in his family until September 22, 1892, when he caused her to be taken to Mrs. Daniels in Brooklyn. On September 22, 1892, the probate court at Bridgeport rejected the probate of the will of the infant’s father, made April 14, 1892, on the ground that he was not of sound and disposing mind when he executed it. By that will Mr. Sanford was appointed sole guardian of the person and property of the infant. On September 26, 1892, Mrs. Daniels made her application in this matter. The infant had no property in the county of Kings, or, indeed, in this state. All her property was in Connecticut. Until sent here by her uncle, she had resided in Connecticut. She was living in the family of her uncle, and the father, by his will, had attempted to appoint him her guardian, but the probate court in Connecticut rejected the will, and the uncle had no power or right thereafter except to deliver her to some person legally authorized to receive her. No person at that time was authorized to receive her. No guardian of her person had been appointed, and it was therefore his duty to retain and care for the child until some court having jurisdiction should make an order with respect to her. Instead of doing that, as soon as the will appointing him guardian was rejected, he at once sent the child outside the jurisdiction of the courts of Connecticut, to her maternal grandmother, in Brooklyn, although equally near relatives were then living in Bridgeport. His object in doing so is apparent. He -did not wish the courts of Connecticut to appoint a guardian of the person of this infant, who had always resided, and all of whose property was, in Connecticut. It seems to us that this was merely a change of locality of the infant, made by one who did not, under the circumstances, have the right to do even that; and that such -change did not make the infant a resident of Kings county, within the meaning of section 2827 of the Code. The infant’s residence was in Connecticut, fixed there by act of her parent, and could not be changed, in contemplation of law, except by a guardian. The -order appealed from should be reversed, and the proceedings dismissed, with costs. All concur.  