1 Bradf. 208 | N.Y. Sur. Ct. | 1850
Helena Corrigan, the mother of Mary Ann Kiernan, a minor, aged six years, applies for
John Kiernan, the late husband of the petitioner, by his last will and testament, made the following provision in respect to the care1 and management of the minor: “ And for the better bringing up and taking care of my said children, who are minors at the time of my decease, I give and dispose of the care and custody of them to my said wife, as long as she shall remain my widow, for such time as they shall continue minors, or under the age of twenty-one years, she to be guided by the advice of my said executors as to the education of my said children; my said wife and my said executors to manage, educate, and bring up my said children in the maimer they may deem most conducive to their welfare, it being my desire and intention, that my said wife during her natural Efe, or as long as she shall continue my widow and unmarried, should have a home and comfortable support out of my said property, with my said children.”
It is contended by the executors, that this clause of the wiH properly interpreted, constitutes them, together with the wife of the deceased, guardians of the infant, and that the widow having married, and thereby avoided or terminated her guardianship, the executors still remain testamentary guardians, so as to prevent any appointment under the statute.
The words employed in our statute in relation to the power of a father to appoint a testamentary guardian, give him authority to “ dispose of the custody and tuition” of his children (2 B. S.,p. 209, §1, 3d ed.), and it_is declared that “ every such disposition, from the time it shaH take effect, shaU vest in the person or persons to whom it shaU be made, all the rights and powers, and subject him or them to aH the duties and obEgations of a guardian of such minor, and shaH be vaEd and effectual against every other person claiming the custody or tuition of such minor, as guardian in Socage or otherwise” (.Ibid., § 2); and again,
The language of the testator, when he says, “ I give and dispose of the care and custody” of my children to my wife, conforms as nearly to the phraseology of the statute as might ordinarily be expected. It constitutes a very clear “ disposition of the custody” of the infant during minority, and if the will had stopped there, no room for doubt could have existed. The widow would have been the sole testamentary guardian. It is a sound principle of construction, that a clearly manifested intention in any part of a will, ought not to give place to a provision of doubtful or ambiguous meaning. An express and positive devise cannot be controlled by subsequent words of uncertain import; the latter prevail only where they are absolutely irreconcilable with the former. (2 Ja/rman, 742.) Again, where the testator uses technical terms, he is presumed to employ them in a legal sense, unless the context plainly indicates the contrary. {Ibid., 744.)
The first statute that gave a father the power of appointing a guardian (that of 4 & 5, P c& M., c. 8), termed it a grant of “ the order, keeping, education and governance” of the infant. Our statute follows that of 12 Can\, 2, c. 24, § 8, which authorized the father, whether of full age or not, to “ dispose of the custody and tuition” of his infant children. I do not suppose that it is necessary for a valid testamentary appointment under either act, that the precise statutory phrase should be employed. The intention of the testator as gathered from the whole will, however inartificially expressed, will govern in this as well as in any other branch of testamentary provisions. Thus a request by the testator in his will to M., “to take upon herself the management and care of his house an.d children,” has been held in the
It has been decided that a direction of the testator, that 0., his executor, “ should have the education” of his son, did not constitute 0. guardian (Cro. Elis., 678, 734); nor a trust for “ maintenance and education.” ( Vaugh., 184.) Swinborne, on the authority of the civil law, lays down the proposition, that “tuition” is the larger word, and more comprehensive than “ custody” (Swinb. Pt., 3, § 12; Storke vs. Storke, 3 P. Wms., 51) ; but admits that a devise to one “ to take care of,” or “ to have the custody of ” the testator’s children, is even under the civil law, and independent of the statute, sufficient to constitute a guardian, in the absence of other terms. A devise that the son should be under “ the care and direction” of A & B, has also been held good to constitute a testamentary guardian (Bridges vs. Hales, Mosely, 108); also a direction for the maintenance of 0., whilst “ the children should live with her” (Mendes vs. Mendes, 3 Atkyn., 624), has been thought sufficient. • It has been doubted in the latter case, whether a devise of “ custody” generally was sufficient, on the ground that no limitation of time during minority was fixed. (Bingham on Infancy, 141.)
If we examine with the light afforded by these decisions, the will now under consideration, there can be little if any difficulty in the solution of the question. The testator says, “ for the better bringing up and taking care of
I must hold, therefore, that the testator did not make the executors jointly with his wife guardians of this infant, but that, on the contrary, she was constituted by his will sole guardian. Having married again, her guardianship ceased, and there being no testamentary guardian, it is competent for me now to proceed and make an appointment under the statute.
The child being a female of tender years, it is proper she should be left as nearly as possible under maternal influence and care, and there seems no objection to the ap