Adams v. Specht
40 Kan. 387
Kan.
1888
Check Treatment

The opinion of the court was delivered by

JOHNSTON, J.:

The record in this proceeding presents for decision the single question: Was James H. Adams entitled to an appeal from the order of the probate court appointing Thomas R. Brown as guardian of the estate of the minor, and rejecting the application of Adams for the same appointment ? The question is to be determined by the statutes and decisions of our own state. It is enacted that an appeal may be taken by any person aggrieved to the .district court from any order or decision of the probate court, in any matter arising under the act concerning guardians and wards. (Comp. Laws of 1885, ch. 46, §26, and eh. 37, ’§190.) If Adams was not interested or aggrieved by the decision of the probate court, he had no right to an appeal to the district court. But assuming that he may be said to be an aggrieved party within the meaning of the statute, we are of opinion that no appeal lies from the rejection of his application for appointment. No person has an absolute right to be chosen as guardian of the estate of a minor. The father and the mother are the natural guardians of the persons of their minor children; but even they have no preferred right regardless of qualifications, to be appointed as guardians of the estate of such minor. They may be preferred over strangers — first the father, and in case of his death, the mother; but the appointment of either depends entirely upon whether he or she is a proper or suitable person upon whom to bestow the trust. (Comp. Laws of 1885, ch. 46, §5.) The leading consideration for the court in determining who of several applicants for appointment shall be chosen, is the welfare of the minor and the advantage of the estate. In deciding who of the applicants is most suitable, the court may pass over the parents and appoint a stranger; or it may reject all applicants if they are deemed unsuitable, and appoint some one not ap*391plying for the place. If several persons, having no preferred right to appointment, and who are equally suitable, apply for the place, the court has an untrammeled discretion to choose any or none of them. It will thus be seen that the power conferred upon the probate judge of appointing a guardian of the estate of a minor, is a discretionary one; and according to the established precedents, no appeal lies from the exercise of such power. In Linton v. Comm’rs of Linn Co., 7 Kas. 79, the probate judge applied to the board of county commissioners for an allowance in addition to the fees given him by law, but the board rejected the application, and the probate judge attempted to appeal from the decision. The statute under which the application was made, vested the board of county commissioners with the discretion as to allowing additional compensation to the probate judge, and the court held that no appeal lies from the exercise of a discretionary power, although the statute providing for appeals from the decision of the board of county commissioners provides that any person who shall be aggrieved by any decision of the board, may appeal from such decision to the district court. The language of the statute giving the right of appeal from the decisions of the probate court in matters arising under the act concerning guardians and wards, is no broader than that of the act giving a right of appeal from the decisions of the board of county commissioners. In fact, the terms employed to confer the right of appeal in both cases are substantially alike. In Fulkerson v. Comm’rs of Harper Co., 31 Kas. 125, the court held that a decision of the county board refusing to grant a petition to set off and organize a new township could not be appealed from; and the court again declared that when the board exercises discretionary power in making a decision, no appeal will lie.

Following the rule established by these decisions, we must hold that the plaintiff was not entitled to an appeal from the order made by the probate judge, and that therefore the district court ruled correctly in refusing the peremptory writ of mandamus, and its judgment will therefore be affirmed.

All the Justices concurring.