Boyle v. Griffin

84 Miss. 41 | Miss. | 1904

Cauuoon, J.,

delivered the opinion of the c'ourt.

At one time there lived in this state a gentleman named Andrew E. Tryon. He was a chronic invalid. He had, at the-time this record is concerned, with him his three little motherless children, the survivors of a family of five of them. He seems to have been in life, and up to the hour of his death, .absolutely devoted to them, and all the time possessed with a fervent wish that they should be kept together and grow up with fraternal love and affection. Disease had for some years-made work for their support impossible to him. Struggle for a livelihood had to cease, but from no fault of his own. Finally, all he had was exhausted, and he could not furnish bread for the mouths of his little ones, and they had no nest. He was destitute, and destitute with a heart filled with every generous impulse of paternal devotion to Iris offspring. Longing to help' them, he was powerless, chained to a rock by pitiless disease,, but with great and fetterless affection. A situation more distressing to a sensitive heart it is not easy to conceive. When everything had been exhausted -in maintenance, and starvation was snarling at his brood, good people of Tutwiler came to their aid in such way as they could, and charity combated the-wolf. In this, his dire extremity, dominated as he was by the hope of keeping his children together, he made application to the Orphans’ Home, a noble charity of the Methodist Episcopal Church, established at Water Valley, Miss., to receive them in its generous shelter for the distressed, 'providing in the application that his relinquishment of their custody” should be-“until such time as I may be able to care for them.” This was dated March 25, 1902, and shows that he still hoped to recover his health and support them. This was not acted on,, so far as this record shows, but on April 9, 1902, the extremity being great, a worthy clergyman of that church made and signed Mr. Tryon’s name to another application to the same institution for their admission, but without Mr. Tryon’s knowledge, consent or ratification. The action of this minister was from the most benevolent motives, and above criticism, because he knew of the desire of the father that the children should not be separated, and that the father was in no condition for "consultation, and that immediate action was absolutely necessary. He assumed and was warranted in assuming, that, in the emer-. gency. then existing, the father could not but approve. This worthy Christian man, then, took the three children, Ada, aged 11, Algie, aged J, and Elmer, aged 5 years, to the institution, which accepted Algie and Elmer, but refused Ada because of her ill health, and the benevolent clergyman took her back to Tutwiler, where she was cared for by charity until sent to Memphis to another Christian charitable institution known as “St. Peter’s Orphan Asylum.” This was at her father’s wish, so that she might be near him, he being then in St. Joseph’s Hospital there, under treatment, and with hope of recovery, and, without doubt, adopting Memphis as his permanent home. He had also written the Orphans’ Home at Water Valley for Algie and Elmer to be sent, and with money for their fare to Memphis furnished by friends, hut they were not sent, and are still at the Orphans’ Home. These three children had nothing* on earth except a policy of insurance in the Woodmen of the World for $2,000, the assessments and dues on which were kept up in Mr. Tryon’s poverty by a big-souled man named H. B. Eitch. On May 23, 1902, Mr. Tryon made his will in Memphis, Tenn,, giving .the guardianship of the persons and estate of his three children to Mr. Patrick Boyle of that city, and died five days thereafter, on May 28, 1902, with Ada only with him, and Mr. Boyle duly probated the will in Memphis on June 5, 1902, on which day letters of guardianship were duly issued to him there. The camp of the Woodmen of the World, of which Mr. Try on was a member, was at Tutwiler, Miss., and, according to custom, that order sent the check for the $2,000 there for delivery to, and on receipt of, Patrick Boyle, guardian, and, while this check was in the hands of the proper officer of the Tutwiler camp, Mr. Griffin, who had been informed of Mr. Boyle’s appointment, and had seen a copy of his letters of guardianship a month or more before, and without any. notice to Boyle of his purpose, himself took out letters of guardianship of Algie and Elmer in Tallahatchie county, Miss., on August 27, 1902, less- than three months -(Code 1892, § 1509) from Tryon’s death (Code 1892, § 2185), and on the next day filed his bill for attachment in chancery, and the court decreed that he have two-thirds of the check and Boyle one-third of it, and Boyle appeals.

Very clearly, from the evidence, Tryon’s domicil was Memphis, Tenn., Avhen he made his "will, and he had a perfect right to name the guardian for his children, and he did so. His domicil being in Memphis, that also was the domicil of his children in the view, of the law, and the guardian was under nd legal obligation to file copies of his letters of guardianship, etc., in Mississippi before receiving a check payable to him. If he were, he did so after he had notice of Mr. Griffin’s bill, which was his first knowledge that Griffin had taken out letters. Grist v. Forehand, 36 Miss., 70; Code 1892, §§ 1925, 2211. It is sufficient for Boyle, the foreign testamentary guardian, in defense of a suit for a check payable to him, to produce his appointment as testamentary guardian. Boyle was entitled! to the Avhole check and the custody of the children.

Reversed and decree here dismissing the hill.