
    The People, ex rel. The Brooklyn Industrial School and Home for Destitute Children, vs. Thomas Kearney.
    Where a child has been duly surrendered by its father and natural guardian to the Brooklyn Industrial School Association and Home for Destitute Ohil- ' dren, pursuant to the charter of that association, by an instrument in writing signed by the father, such surrender will not be superseded, and rendered inoperative and void, by an order subsequently made by the surrogate, appointing an individual the general guardian of the infant.
    JESSE C. SMITH, for the relator.
    
      John Greenwood, for the defendant.
   By the Court, Brown, J.

This is a certiorari, brought to remove and review certain proceedings upon a habeas corpus, had before Samuel D. Morris, Esq., county judge of Kings county, in which he awarded the custody of Catharine Baffin and Mary Ann Josephine Baffin, infant children of John Baffin, deceased, to the defendant, Thomas Kearney. The relator claimed the custody of the children by virtue of an instrument in writing executed by John Baffin, the father, on the 13th December, 1858, and just before his death; and the defendant claimed the care and control of them as their guardian, duly appointed by the surrogate of the county of Kings, on the 2d March, 1859. The infants are of very tender years, the eldest, Catharine, having been horn on the 26th of October, 1853, and the other, Mary Ann, on the 19th of October, 1855. The death of their father left them both orphans without property or means of support—in fact both at the time their father executed the instrument of the 13th December, 1858, and also when the defendant procured himself to be appointed their guardian, they were in a state of utter poverty and destitution, and have so remained to the present time.

At the common law, the parents are the guardians of their infant children, first the father, and if he be dead, the mother. This results from the nature of the relation between parent and child, and is a recognition of the ties, duties and obligations which bind them to each other. By the 5th section of the act in regard to the tenure of real property, where an estate in lands becomes vested in an infant, the guardianship of such infant, with the rights, powers and duties of a guardian in socage, shall belong, 1st, to the father, and if there be no father, to the mother; and if neither father or mother, to the other relatives of the infant. This class of guardians would have authority to take charge of the whole estate, both real and personal. But when there is no real estate, the father, as the guardian hy nature, has no power over the personal estate of his infant child. The rights and authority of this class of guardians are, in all cases, superseded when a, guardian is appointed by the deed or last will of the father, or in default thereof by the surrogate. (2 Kent’s Com. 224.) The first section of the act concerning guardians and wards gives to the father power, by deed or will duly executed, to dispose of the custody and tuition of his infant children, during their minority, or for any shorter period, to any person or persons. And section two declares that the person to whom it shall be made shall have all the rights and powers, and be subject to the duties and obligations, of the guardian of such infants; and such disposition shall be valid and effectual against every other person claiming the custody or tuition of said infant, as guardian in socage or otherwise. I am thus particular to refer to these rules of the common and statute law, for the purpose of keeping in mind that the power of the father, as the natural guardian of his infant children while living, and his power to appoint a testamentary guardian for them during their minority, after his death, has always been maintained and still remains unimpaired.

The power of the surrogate, under the act concerning guardians and wards, is not limited to that favored class of infants who are endowed with estates real or personal. He may doubtless appoint a guardian for the infant inmate of a poor house, without property, and without name or lineage. But it would be vain to deny that the statute, and the practice under it, has reference specially and particularly, nay almost exclusively, to the former class. This is manifest from the various provisions in regard to bonds with sureties for ascertaining the value of the infant’s property, and for the keeping, rendering and settling accounts, and for compensation and recompense for expenses and services, and for the removal of the guardian for incompetency or other dereliction of duty. These numerous and complicated provisions can have no possible application to those minors whose condition is orphanage and destitution. The guardian is not bound to support and maintain his ward from his own means. The law imposes upon him no such duty. He may provide for them from humanity, from the impulses of sympathy and charity. But the moment the ward’s property and substance is exhausted the legal duty and obligation' of the guardian is at an end, for he owes none which the law will enforce. If Thomas Kearney should abandon these helpless children, there is nothing for them but what the laws for the support of the poor may afford, or the charities of some such institution as that from which the order of the county judge has separated them.

The relator is an institution incorporated by the act of the 15th April, 1857. Its objects are purely charitable, and it is maintained by private beneficence, and designed to provide guardians or quasi guardians for those children of poverty and indigence who are left by obvious causes outside of the operation of the general law in relation to guardian and ward. In the language of the act of incorporation, the associates are constituted a body corporate, by the name of the Brooklyn Industrial Association and Home • for Destitute Children, whose object and business shall be to establish and support industrial schools, and to establish and maintain a home for destitute children in the city of Brooklyn.” The 6th section of the act authorizes the surrender of infant children by their natural or other legal guardian to the care and management of the association, by an instrument or declaration in writing, and then proceeds to prescribe the duties of the association in respect to such children. Section 7 declares that upon the death, absence or incapacity of the father, the mother may make the surrender, and if she be dead or otherwise incapable, then the mayor of the city of Brooklyn, or the surrogate of the county of Kings, may perform the same office. The act contains ample and other provisions for the binding out and apprenticing of these children, and for their care, education and protection by the association, which it is not necessary to quote at large. The provision in the 6th section is a recognition of the ancient right of the father to provide a guardian for his infant child, by deed or will; and the instrument in writing there referred to, by which the surrender is to be made to the association, is a substitute for the deed or last will mentioned in the 1st section of the act concerning guardians and wards, in cases where the poverty and indigence of the parents and children would leave the general act practically inoperative and unavailing. The instrument in writing by which the relators claimed the custody of the children was duly executed by their father, John Laffin, in the presence of two witnesses, on the 13th of December, 1858, and four days thereafter he died. The children remained with him until his death, and were then taken away by the relator. Thomas Kearney, who is their grandfather, caused himself to be appointed their guardian by the surrogate, on the 2d March, 1859, and on the 29th of March he sued out the writ of habeas corpus and instituted the proceedings under which they were, by the order of t.he county judge, taken from the custody of the relator and delivered over to the defendant on the 16th of May thereafter. The issue between the parties in the proceedings upon the return to the writ of habeas corpus, was the right to the custody of the children, and this depends-ed upon the question whether the appointment of the general guardian, by the surrogate, superseded and rendered inoperative and void the appointment and surrender made by John Laffin, the father, to the relator, by the written instrument of the 13th December, 1858. The first two sections of the act concerning guardians and wards, and under which act the defendant Kearney derives his authority, were made in affirm-: ation and assurance of the father’s right to dispose of the cus-, tody and tuition of his infant children, during their minority, by deed or by his last will and testament. A will merely appointing a testamentary guardian need not be proved, and though the statute speaks of appointments by deed as well as by will, yet such a disposition by deed may be revoked by will: and it is evident from the language of the English statute, and from, the reason of the thing, that the deed there mentioned is only a testamentary instrument in the form of a deed, and to operate only in the event of the father’s death.” (2 Kent’s Com. 225.) The disposition which John Laffin made of his children was as valid and effectual as if it had been made under the first two sections of the general act, for itwas made in exact conformity with the requisition of the 6th section of the act incorporating the relator, and the children were of the class which the act of incorporation was designed to protect and benefit. To give to the appointment of guardian by the surrogate under the general act the force claimed for it by the defendant, would be to impair the right of the father to dispose of the tuition and custody of his infant children, and virtually to set aside the wise and humane provisions of the act incorporating the relator. Besides, the surrogate’s power and authority to appoint a guardian for an infant exist only where the father has failed to appoint by deed or will. (§ 4.) And although it may not be necessary to determine, upon this appeal, the question of the surrogate’s jurisdiction, it is evident, I think, that the guardian he did appoint must hold whatever authority he has subject to the superior right of the relator to the care and custody of the children under the appointment and surrender made by the father in his lifetime. It occasionally happens that letters of administration are granted upon the estate of a deceased person when there is a will in existence, unknown and unproved, at the time, which disposes of the entire estate. Upon proof of the will the administrator, and all his rights and duties under the letters, are superseded by the will, and must yield to the superior right of the deceased in his lifetime to dispose of his effects through executors of his own appointment, at his own pleasure. So, also, it may occur that statutory guardians for infants may be appointed when there is a deed or will in existence appointing testamentary guardians for these same children, which may be undiscovered and unkown at the time. In this case, also, it cannot be doubted that the statutory guardians- would be superseded, and their powers suspended, by the production of the deed or will appointing others to execute-the same trusts.

It was" said upon the argument that the decision of the surrogate, in awarding the letters of guardianship to the defendant, concludes the relator in the proceedings upon the habeas corpus. That the question is res adjudicada. There are two very sufficient answers, I think, to this proposition. To entitle the surrogate’s adjudication to this weight, it must have been directly upon the point in controversy, and between the same parties, and the surrogate must have had cognizance and jurisdiction of the same question litigated in the proceedings upon the writ of habeas corpus. The first answer is that the relator was not and could not have been made a party to the proceeding before the surrogate. The surrogate’s court is-a court of special and limited jurisdiction, and must proceed-to exercise its powers according to the letter of the statute from which it derives them. Its authority in regard to parties upon a petition for the appointment of a guardian, is to be found in the 5th section of the act. The parties other than the petitioner' are limited to the relatives of the minor residing in the county. The person to whom the minor may have been apprenticed by indenture, or to whose care and custody he may have been committed by the deed or will of -the father, cannot be made, nor can he make himself, i a party to such an application, so as to be concluded by the judgment or decree, for -the very obvious reason that the act has given the surrogate no such authority. It prescribes what he shall do, and who he may call before him to be bound and concluded by his decrees. The voluntary appearance of the counsel for the relator before the surrogate upon the hearing of Thomas Kearney’s application, did not conclude or affect its right to the custody of the children. The next answer to the point of res. adjudicada is that the right to the custody of the infant was not the question before, or determined by, the surrogate. His power was limited to an examination and determination into the fitness of the proposed guardian,, the value, of the infant’s personal estate, and the rents and profits of his real estate,, and to fix the amount and the sufficiency of the security to he given. The force and effect of the letters of guardianship, and the power of the guardian under them, was not a subject for the surrogate’s consideration. They might or they might not in vest, the person appointed with a.right to the control and custody of the infants, as the extraneous circumstances might happen to. bp. But that was not for the surrogate to settle.. He issued the letters, and when the appointee came to assert rights under them, as against third persons standing in the situation of the relator, then those rights being purely incidental to. the appointment, would become" proper subjects for consideration and adjudication. "

It was said upon- the argument that the. surrender mentioned in the 6th and" 7th sections of the act incorporating the relator is intended to be a. present act, and to place the association immediately in loco parentis. That the term surrender, ex vi termini, implies a present act. Strictly speaking this may be so, but it would be a most narrow and illiberal construction to apply the rule literally to this act which is purely charitable, and which in no possible contingency can interfere with the rights of property. Especially would this be so when the opposite construction does no more than give effect in another form to the father’s right to appoint !a testamentary guardian for his infant children. But concede its application," for the" present, and "what is there upon the face of the instrument of the 13th December, 1858, or in the evidence, to show that the surrender by John Baffin to the relator was not a present act ? The instrument imports an absolute and immediate surrender. He was at the time it was executed in the last stage of an incurable disease, and was awaiting his dissolution hourly. He asked that his children might remain with him during the brief period that yet remained to him of life. To this last request of a dying father those representing the- association assented. How could they do otherwise, and with what reason can it be said that suffering these little children to remain with their father for a few days or hours until he expired, and the last act of life was concluded and consummated, converted the transaction from a present to a prospective surrender?

[Dutchess General, Term,

May 14, 1860.

Something is said in the opinion which accompanies the order appealed from, touching the incapacity of John Baffin at the time he executed the instrument of surrender ; but as there is no proof whatever to show such want of mental capacity, the counsel wisely omitted to refer to it upon the argument.

It is the duty of the courts to carry out the manifest intention of the legislature, and give effect to the humane and charitable provisions of the act which incorporates and creates the relator. But it must be evident to the most ordinary apprehension, that if the relatives of destitute orphan children, committed to its care and supervision by the written instrument of the parent, can retain and recover their custody under authority derived from the general statute concerning guardians and wards, the act of incorporation may in many cases be rendered nugatory and ineffectual to accomplish any useful or valuable purpose.

The proceedings add order of the county judge should be reversed, with costs, and restitution of the infant children awarded.

Lott, Emott and Brown, Justices.] 
      
       The instrument was as follows: “ I, John Baffin of the city of Brooklyn, father of Catharine or Kate — Mary Ann Josephine Baffin, do commit and surrender said children to the care and management of the Brooklyn Industrial School Association and Home for Destitute Children, with the powers and sub- ' ject to the provisions contained in the apt incorporating paid Association and Home.
      Dated Brooklyn, December 13, 1858,
      his
      John f Baffin.
      mark.
      Witness, Annie Kimberly.
      fitness, Susan C. Smith."
     