Bolling v. Coughlin

5 Redf. 116 | N.Y. Sur. Ct. | 1881

The Surrogate.

An interview with Judge Barrett, since the submission of this motion, has confirmed me in my opinion entertained on examining his order, that that painstaking judge carefully investigated the matter upon its merits, having reference to the suitableness of the petitioner and of the minor’s aunts to have the custody of said child, and that his order was not made upon any mere technicality, but was based upon his conviction that the best interest of the infant required that petitioner should retain the custody of her, upon the well settled equitable prerogative of the court,, to regard such interest as the paramount and controlling consideration, in making such awards

It is quite apparent that the application for letters of guardianship was made with the purpose of overcoming the effect of Judge Barrett’s order, and of circumventing his award of the custody of the minor to petitioner, as a suitable person to retain such custody, by interposing the strict legal right conferred -by the letters issued by this court, which were issued in ignorance of the proceedings before said justice, and of the petitioner’s claim to such custody under the verbal authority of its mother. I hardly need state that, if these facts had come to the knowledge of this court, notice of the application for letters would have been required to be given to the petitioner, and that it would have been my duty to have instituted a careful investigation of all the facts bearing upon the custody of the minor, having reference to her best interests.

It is, however, objected by the counsel for the respondent that, as the petitioner is not a relative of the infant, she has no right to ask for the revocation of the letters, and to this end he refers the words “in his behalf,” in section 2832 of the Code, to the words “any relative ;” while it seems to me that this is an entirely erroneous interpretation, and that it was the intention of the section to enable “any person” to make the application to revoke, in the ward’s behalf; otherwise a guardian, in a case where the ward should have no relatives, or none willing to make the application, would be able utterly to disregard the obligations of his trust, and dissipate the trust funds. I entertain no doubt of the right of the petitioner to institute these proceedings.

The next objection urged by counsel to this motion, is that the letters were issued upon the proper petition, and cannot be revoked, except under section 2832, above cited, and that the facts set forth, in the petition do not bring the case within the provisions of that section. It is, probably, technically true that the grant of letters was not obtained by “false suggestion of a material fact,” though there was a .suppression of facts which would have materially affected the determination of this court on the application, if they had been known. But I am of the opinion that the petition and accompanying affidavits brings this application directly within subdivision 6 of the section referred to, and that it becomes the duty of this court to make full investigation of those facts, as they bear upon the true interest of the minor, if they shall be properly traversed ; otherwise that the letters be revoked, so far as they award the custody of the person of the minor, and that the petitioner, on proper application, be appointed the guardian of the person of said minor.

But in case the respondent shall, within two days after service of a copy of the order to be entered herein, interpose an answer to the facts set forth in the moving papers, the matter may be then referred to a referee, to take the testimony, as to whether the appointment of another guardian will best promote the welfare of the minor, and in the meantime all proceedings on the part of the respondent, under her letters as guardian of the • person of said minor, may be stayed.

Ordered- accordingly.