Burmester v. Orth, 5 Redf. 259

Burmester v. Orth

5 Redf. 259 | N.Y. Sur. Ct. | 1881

The Surrogate.

It is obvious that the mother, being a suitable person, able to maintain and educate her minor child, on the death of the father, is entitled to the guardianship of the minor, for the reason that the law presumes that she has such an affection for, and interest in, her child, as would prompt her to the best *262care for its welfare; but that presumption seems to be entirely overcome in this case.

I am aware that to discriminate against a parent, in the appointment of a guardian for a minor, is the exercise of a very delicate and high prerogative on the part of a judicial officer, and yet it is the performance of a very obvious duty, where it is apparent that the welfare of the minor will be thus best subserved.

It is also a most distasteful necessity to find a mother unworthy of the nurture and education of her child; but after a careful consideration of the testimony in this matter, it would, in my opinion, be a most reprehensible disregard of the true interests of this minor to confide his maintenance and culture to such a mother, and to the evil and contaminating influences of her immoral example and vicious surroundings, compared with which, complete orphanage and dependence upon the so-called “cold charities of the world” would seem to be a most welcome deliverance. But in this case, fortunately, the father seems to have appreciated the danger likely to befall his child, and- to have intrusted his care to an industrious, worthy, kind-hearted citizen and friend, who seems, thus far, wisely and considerately to have performed the duty and the kindly offices of a worthy guardian, and who has manifested his respect for the wishes of his deceased friend, in sheltering and protecting his helpless offspring, and who now generously offers to assume the legal obligation of guardian, prudently to administer the bouncy of a praiseworthy charity, provided by the father for the benefit of his son,

In Bennett v. Byrne (2 Barb. Ch., 216), and Underhill v. Dennis (9 Paige, 202), it is held that the declared *263wishes of the deceased parents of an infant, in respect to the manner in which he should be brought up, and to whose care he should be committed during his infancy, are entitled to much weight, in deciding upon the claims of the different relatives to the guardianship of the infant ; and while I should pay but little regard to such an expression by the father, as against the lawful claims of the mother, unless the father’s wish took the form of a testamentary disposition of the infant, yet in a case where the mother appears to be unfit for the office, I am of the opinion that this court may, with great propriety, give special weight to the expressed wishes and acts of the deceased father, in respect to the custody and support of his infant son, especially as all the evidence shows that the choice of the father was wisely and prudently made.

I am, therefore, of the opinion that the petition for letters of guardianship by Charles Burmester should be granted, and letters issued to him, according to the prayer of his petition, on his giving the usual bond in the sum of $2,000, and that the petition of the mother should be dismissed.

Ordered accordingly.