266 Pa. 479 | Pa. | 1920
Opinion by
Henry C. Butcher, Jr., the decedent, a member of the Protestant Episcopal Church, and Constance Devereux, a member of the Roman Catholic Church, were married October 10, 1905, by a Roman Catholic priest. In accordance with the forms of the Roman Catholic Church and in compliance with the rules of that Church, Butcher, previous to the marriage, agreed that children born of the union should be educated in the Roman Catholic faith. The wife died in 1917 and the husband in 1918, leaving three children, aged four, eleven and twelve years, respectively. Following the death of the mother the father secured the appointment of his sister as guardian of the estates of the children. Subsequent to the father’s death, a petition was presented to the Orphans’ Court of Montgomery County asking that Henry C. Butcher, Sr., the paternal grandfather of the children, be appointed guardian of their persons. Objection to the appointment was made by Charlotte Ántelo, a maternal grandaunt, on the ground that the proposed guardian “is not of the religious faith of the children or of their mother,” and asking for the appointment of Alfred T. Devereux, the maternal uncle of the children, as their guardian. After hearing the evidence
Appellant concedes the guardian appointed is a man of excellent character and high standing, possessed of considerable property, is well able to care for the minors, has affection for them and announces his intention of amply providing for their future. The sole objection made to his appointment is that he is not of the Catholic faith. Unless this fact alone is sufficient ground for reversing, the decree must be affirmed, as the court below in the exercise of its discretion decided the best interest of the minors required the appointment of the grandfather.
There is no denial that decedent before marriage promised that “all children born of such marriage shall be brought up in the faith of their Catholic mother,” and that he at all times showed every intention during his lifetime of carrying out such promise. Shortly before his death, in a letter to the children, he expressed the hope they would grow up to follow the religion of their mother, in accordance with her wishes. Accordingly, we have presented squarely the question whether- the fact that the mother, being a Catholic, and the father, though Protestant, having promised, previous to marriage, that their children should be brought up in that faith, compels the court to appoint as guardian a person of the Catholic faith under section 59 (B) of the Fiduciaries Act of June 7, 1917, P. L. 447, which provides that “persons of the same religious persuasion as the parents of the minors shall in all cases be preferred by the court in their appointment as guardians of the persons of such minors.”
It is important to notice that the guardian appointed by the court below, notwithstanding his membership in a Protestant church, testified he had no desire in any way to interfere with the religious training of the children, and in fact stated he would bring them up as Catholics until they were old enough to choose for them
Before the application for appointment of a guardian was made, counsel for the respective parties entered into negotiations with the view of coming to an amicable arrangement with respect to the religious education of the children, and also determine if provision could be made at their schools which would permit attendance at a Catholic church. The principal of each school stated that arrangements could be made for visits of a Catholic priest to the schools and for attendance at Catholic services, if their guardian so desired. It thus appears the guardian is in every way fully qualified td care for the minors, and agrees to bring them up in accordance with the wishes of the parents, the sole objection being that his personal religious persuasion is not the same as that of the children’s mother. Is he to be rejected for this reason alone? We think not, unless a statute expressly commands such action. The court below concluded the Act of 1917 does not contemplate
In affirming the decree of the court below we conclude that (assuming the agreement and express desire of the father to be the equivalent of a religious “persuasion” within the meaning of that word as used in the Fiduciaries Act of 1917) the court was not bound to appoint one of the same religious persuasion but had the right,—
The decree of the court below is affirmed.