
    Matter of McConnon Infants.
    
      (Surrogate’s Court, New York County,
    
    
      June, 1908.)
    Guardian and ward—Appointment, qualification and tenure of guardian—Right to appointment—Questions controlling right—Religion OF PARENTS.
    Where a stepfather was appointed guardian of the- persons of his stepchildren, after their mother’s death, with the consent of their nearest relatives (sisters of their deceased father), and after his appointment it appears that he is a zealous Protestant; that the father of the infants was a Catholic and one of them expresses the desire to continue in his father’s church; the letters will be revoked and guardianship will be granted to a paternal aunt of the infants who adheres to the Catholic faith.
    See 115 Supp. 886.
    Application to revoke letters of guardianship. The opinion states the case.
    Owen W. Bohan, for petitioner; Samuel Levy, for respondent.
   Beckett, S.

Section 28-32 of the Code of Civil Procedure provides that the ward or any relative, upon a written petition setting forth the facts, may pray for a decree revoking letters of guardianship, either of the person or of the- property, in certain specified cases, one of which is (in the case of the guardianship of the person) where the infant’s welfare will be promoted by the appointment of another guardian. It appears in this matter that Mr. William Hutchinson was the stepfather -of the two-infants, he having married their mother after the death of their own father. In February, 1908, he applied for his own appointment as the general guardian of the person -and estate of both of the infants, they being under fourteen years of age. Their own father’s name was James McO'onnon. He was a Catholic. His nearest relatives were Rose McKelvey and Ellen Traynor, his sisters, also Catholics. Mrs. McKelvey and Mrs. Traynor executed the usual consent that Mr. Hutchinson should be appointed such general guardian, and he was so appointed on February 18, 1908, and as far as it appears from the evidence before me he duly qualified as such guardian, collected the infants’ money and properly cared for the same.

Respecting the charges that have been made against Mr. Hutchinson as to his character and conduct, I am not satisfied from the preponderance of the evidence that the same have been established or proven. There is evidence indicating that he has been a good stepfather to the children, that he has undoubtedly aided in their support and maintenance, and I dismiss the charges and insinuations against his character and conduct as not established or proven. He has specifically denied the same on the witness stand, and I believe him. At the same time he is a pronounced Protestant. From my observation of the witnesses I should say that one side were as determined in their Catholic as the other side, the guardian, is zealous in his Protestant faith. It has been pronounced on both sides.

It has been established that the father of these infants, James McConnon, was a Catholic, born a Catholic, lived a Catholic and died in the Catholic faith, and his son, one of the infants here, now ten years of age, of intelligence sufficient in my judgment to comprehend the nature of an oath, has gone upon the witness stand and has clearly told his own life history, which shows me that during the life of his father and afterward, even up to the time that his mother went to the hospital, which was about one-year after she had married Mr. Hutchinson, he, the boy, attended the church of his father, and, -indeed, was there connected as an altar boy, with the formal services and ceremonies of that religion, and he expresses, upon the witness stand, -a desire to continue in the church of his father. His testimony is clear and has weight with me, .and I have also ¡taken pains to examine him and his sister separate and apart from any of the parties in 'this proceeding.

Now, as to the aunt of these infants, Mrs. Rose McKelvey, the petitioner herein, she has given testimony which satisfies my mind that she has had experience in the care and nurture of children, she having practically been the guardian of infant children who were her nephews and nieces, bringing them up and caring for them for several years. It is true that she and Mrs. Traynor executed a consent that Mr. Hutchinson should be appointed general guardian, but I know no reason why that should be binding forever, and circumstances or conditions arising afterward certainly would justify the institution of a proceeding to remove a guardian, notwithstanding the execution of such a consent. In making this decision I rely upon Matter of Jaque, 40 Misc. Rep. 575, a case quite' similar to the present matter. In that case also the father was a Catholic, but the mother of the children declared herself to be a Protestant and expressed the wish that the children be educated in the Protestant faith. The court there held that it must decide as to whether its powers should be used for the rearing of the children under Catholic or Protestant influence, citing an English case as an authority that the guardian should have a sacred regard to the religion of 'the father in dealing with the child; that the father has the absolute right in his lifetime to decide what religious education the child shall receive, and after his death the guardians are to follow out his wish. This case was decided by .the surrogate of Monroe county. It is very much in point here, and the surrogate said in conclusion: Upon the preponderance of the evidence as presented here, principle and authority impel this court to commit these children to Catholic guardianship until maturity shall give to each that absolute freedom of choice of religious belief that his judgment and conscience approve, which is the birthright of his American citizenship.” My attention has also been called by the attorney for the petitioner to Matter of Crickard, 52 Misc. Rep. 63, which seems to lay down, the same rule. I believe that the welfare of these infants is best promoted by bringing ¡them up in the faith of their father.

Accordingly I will revoke William Hutchinson’s letters of guardianship of the person of these infants, and I will appoint in his place as guardian of the person their aunt, their father’s sister, Rose McKelvey, upon her giving a bond in the penal sum, in the case of each infant, of $250.

Decreed accordingly.

NOTE ON APPOINTMENT AND QUALIFICATION OF GUARDIANS.

JURISDICTION.

A Surrogate has jurisdiction to grant letters of guardianship only in case of minors residing in his county. Brown v. Lynch, 2 Brad. 240.

The jurisdiction of the Surrogate to appoint a guardian depends upon the actual residence of the infant and not upon its legal domicile. Ex parts Pierce, 12 How. Pr. 532.

Where the guardian changes the residence of his ward from one county to another, and on his attaining the age of fourteen years, the ward desires to choose another guardian, the Surrogate of the latter county has jurisdiction to make the appointment. Ex parte Bartlett, 4 Brad. 221.

The jurisdiction of the proper surrogate to appoint a guardian cannot be defeated by the act of the relatives of the minor in changing his residence. Hughes’ Estate, 1 Tuck. 38.

One sister of an infant applied to the surrogate to have a trust company appointed the guardian of the infant, and another sister applied to be herself appointed such guardian; held, that the surrogate may use his discretion, and, if the best interests of the infant will, in his opinión, be served thereby, he may appoint a trust company guardian of the infant’s estate, and the relative guardian of its person. Matter of Buckler, 96 App. Div. 397.

The jurisdiction of the Supreme Court over the persons and estates of infants, without regard to age, is not limited by Sec. 2827 of the Code of Civil Procedure, conferring concurrent jurisdiction on the Surrogate’s Court with regard to such matters, nor by rule 52, General Rules of Practice, designating the person who may present a petition for the appointment of a general guardian for the infant. Matter of White, 40 App. Div. 165.

PROCEEDINGS FOR COURT APPOINTMENT.

An application for the appointment of a guardian must be by petition. Dutton v. Dutton, 8 How. Pr. 99.

If the petition contains sufficient facts to confer jurisdiction, the appointment is valid, until reversed or vacated, though the infant never resided within the county. Dutton v. Dutton, 8 How. Pr. 99.

Where the mother of the infant is cited, because she is prima facie entitled to its custody, she is not such a party as to subject her to liability for costs, upon the granting of the application. Matter of Valentine, 100 N. Y. 607.

The petition should state the amount of the property to which the infant is entitled within the state, so as to enable the court to fix the penalty of the official bond. Johnson v. Borden, 4 Dem. 36.

A petition for the appointment of a stranger, where infant is under fourteen, must show relationship of petitioner to the infant, whether the father and mother are living, the circumstances rendering the appointment of the petitioner expedient, and whether a general guardian has been appointed. Matter of Van Vranken, 20 St. Rep. 387.

No notice required, though may be proper in a special case. Morehouse v. Cooke, Hopk. Chanc. 226.

Notice must be given to the infant’s relatives, on application to the surrogate. Underhill v. Dennis, 9 Paige, 202.

The fact that the infant’s real estate descended to him from his father is no ground for preferring the paternal relations in the appointment; the declared wishes of the deceased parents, as to the manner in which the infant should be brought up, and to whose care he should be committed are entitled to great weight in deciding the question of guardianship. Underhill v. Dennis, 9 Paige, 202.

The surrogate may appoint a guardian, but has no jurisdiction over him as trustee. Ex parte Andrews, 1 Johns. Ch. 99.

A surrogate has no jurisdiction to appoint a guardian of the person and estate of a minor, resident of another state, even if having property here. Ex parte Hosford, 2 Redf. 168.

The Supreme Court has no jurisdiction to appoint a guardian for an infant, not within the jurisdiction, or domiciled there, and who has no property therein; and the bringing of the infant within the state, by stratagem, for that purpose, will not avail. Ex parte Hubbard, 82 N. Y. 90.

A guardian will not be appointed for an infant whose parents are living, except where the parents appear to be unfit for the control of, or to have interests adverse to, the infant. Ex parte Barre, 5 Redf. 64.

Where the parents of an infant, over fourteen years of age, aré living, a general guardian of his person will not be appointed, unless special circumstances are shown, satisfying the surrogate that the interests of the infant will be promoted by such appointment. Ex parte Ledwith, 1 Dem. 164.

A surrogate has no power to appoint a guardian for an infant over fourteen years of age, except of his own choice. Sherman v. Ballou, 8 Cow. 304.

A surrogate has no power to appoint a new guardian in place of one appointed by a court of chancery. Ex parte Dyer, 5 Paige, 534.

Where a guardian is removed, the jurisdiction to appoint a new one is. in the surrogate who ordered the removal. People v. Walmesley, 15 Abb. Pr. 323.

A Surrogate’s Court, upon the appointment of a guardian, may, as a. condition, require the guardian to permit access to his ward by such persons as the court may designate. Derickson v. Derickson, 4 Dem. 295.

In determining questions of guardianship the. choice of the child, if of sufficient capacity, is an important consideration, and to ascertain if such choice is voluntary, the surrogate may privately examine the child, as to its wishes. Matter of Burdick, 41 Misc. 346.

Where a widow, having been appointed guardian of a minor, moves to another state, remarries and dies there, and the stepfather succeeds her as guardian, in such foreign state, the minor’s residence is in such foreign state, and proceedings for the appointment of a guardian here cannot, be entertained. Matter of Wildberger, 25 Misc. 582.

APPOINTMENT BY WILL.

The fact that the will of a surviving parent nominates as guardians of her minor children, persons who are not residents of the state, and who have no office therein for the transaction of business, and whose circumstances are such that they cannot furnish adequate security for the administration of their trust, does not authorize the surrogate to refuse to issue letters of guardianship to them. Matter of Welsh, 50 App. Div. 189.

Separate guardianships of person and estate cannot be effected by will. Matter of Burdick, 47 Misc. 28.

Under Domestic Relations Law, paragraph 51, the parents or surviving parent are the only ones who may appoint a testamentary guardian for an infant. Matter of Waring, 46 Misc. 222, 4 Mills, 473.

WHO ARE ENTITLED TO APPOINTMENT.

The right of the mother to be guardian of her children immediately attaches on the death of the father, and when invoked, demands the legal protection of the court, which should be given unhesitatingly, except for sufficient reasons. Matter of Burdick, 41 Misc. 346; 4 Mills, 48.

Where it appears that the mother of infants was incompetent and that 'the father had been guilty of petit larceny and of intoxication, a grandmother of the infants will be appointed temporary guardian in preference 'to either parent. Matter of Jacquet, 40 Misc. 575; 3 Mills, 551.

A non-resident alien will be denied letters of testamentary guardianship. Matter of Zeller, 25 Misc. 137.

In making the appointment, the true interests of the infant are first to be consulted, and the guardian’s sureties must be justified in at least the penalty of their bond. Bennet v. Byrne, 2 Barb. Ch. 216.

The court will pay regard to the true interests of the minor. Burmester v. Orth, 5 Redf. 259.

Though the wishes of the near relatives or the declared wishes of the «deceased parents, will be considered, yet the power must be exercised with a view to the social relations and the welfare of the minor. Holley v. Chamberlain, 1 Redf. 333.

The wishes of a deceased father will be followed, in the appointment -of one of his religious faith, there being no estate. Ex parte de Marcellin, 24 Hun, 207.

The interest of the infant is a paramount consideration; an uncle or aunt will be preferred to a more remote relative, and the wishes of the parents should have a preponderating influence; no appointment should be made until parties interested have an opportunity to be heard. Smith v. Smith, 2 Dem. 43.

Where a child has been surrendered by its father to the Brooklyn Industrial School Association, such surrender will not be superseded. People v. Kearney, 31 Barb. 430.

And if guardian, so appointed, remove child out of the jurisdiction of "the court, he will be punished for contempt. People v. Kearney, 21 How. Pr. 74.

Father entitled to appointment by right where mother is dead; if, however, the court is satisfied that the best interests of the child may be -seriously prejudiced by the father’s charge of the child, then it becomes "the duty of the court to award the custody to other hands. Griffin v. Sarsfield, 2 Dem. 4.

Letters will be refused to a father whose habits are such as to demoralize and endanger the future safety and condition of the children. Matter of Raborg, 3 St. Rep. 323.

Where a fourteen-year-old infant petitions, and his father is a resident of a distant state, and there exists such a feeling of antagonism between 'the two that the infant’s welfare will be best subserved by the appointment of another person, the father’s claims will be disregarded. Johnson v. Borden, 4 Dem. 46.

The surrogate, upon appointing another person than the father, has ¡¡no jurisdiction to insert in the order, at the instance of the father, an ¡habitual drunkard, a provision directing the guardian to advise him as to all matters affecting the infant’s estate. Matter of Lindley, 1 Connolly, 500.

Mother, who has remarried, will not, in general, be appointed. Holley v. Chamberlain, 1 Bedf. 333.

No objection to appointment of mother where father is dead, and this though she has remarried and is living with her second husband. Matter of Herrmance, 2 Dem. 1.

Where father is dead, and mother unfit, court may appoint another than the mother. Matter of Meech, 1 Connolly, 535.

Adult husband entitled to guardianship of his wife during her minority. Kettletas v. Gardner, 1 Paige, 488.

Uncle entitled to guardianship of infant in preference to a stranger. Morehouse v. Cooke, Hopk. Ch. 226.

The failure to cite grandfather of infant residing without the state is no ground for setting aside the appointment of an aunt. Matter of Bennett, 24 Weekly Digest, 233.

Where infant’s parents are both dead, and it appeared that its maternal grandmother lived in one of its houses and had little property of her own, the surrogate properly appointed her guardian of the person, and a trust company guardian of the estate. Matter of Beebe, 33 St. Rep. 999.

Sole executor or administrator should not be appointed for infants who are beneficiaries under his trust. Griffin v. Sarsfield, 2 Dem. 4.

Where infant under fourteen, surrogate may appoint person suggested by petitioner; not obliged to appoint a relative. Matter of Vandewater, 27 Weekly Digest, 314.

Discretion of surrogate will not be reviewed on appeal unless abused. Matter of Vandewater, 2 Sil. 406.  