De Jarnett v. Harper, 45 Mo. App. 415

45 Mo. App. 415 | Mo. Ct. App. | 1891

Ginn, J.

— The guardianship of Richard P. Harper, a ten-year-old infant, is the subject-matter of this controversy. The infant Richard is the only son of J. P. and Mary M. Harper. The former died in June, 1888, while the latter died in March, 1890. At the time of the death of these parents respectively, and for several years prior thereto, they were domiciled in Bates county, Missouri. The plaintiff, Polly A. De Jarnett, is the-grandmother, while defendant, Josiah Harper, is a cousin of the said infant. The said grandmother resides in Bates county, and claims the guardianship and curatorship of the child by virtue of the appointment by the-probate court of Bates county in October, 1889, while-defendant, Josiah Harper, resides in Johnson county, and asserts his rights to such guardianship by virtue of an order of the probate court of Johnson county, Missouri,, made in March, 1889. Plain tiff filed her complaint and application in the Johnson probate court askingthe court to revoke the appointment of defendant for the alleged reason, among other thing - that when said defendant was so appointed as guardian and curator of the infant. Richard, his, the said minor’s, domicile was not in Johnson county .but in Bu tes county, and that, therefore,, the said probate court ur Johnson county had no jurisdiction. The canse was tried in the Johnson county probate court, was thence appealed to the circuit court, where on a tried judgment was entered in plaintiff’s favor, and defends nc- -has appealed to this court.

It is well settled that jurisdiction to appoint a guardian for a minor rests alone with the probate court of the county w here said minor has his domicile. R. S. 1889, sec. 52.81; Lacy v. Williams, 27 Mo. 280; Lewis v. Castello, 17 Mo. App. 593 ; Marheineke v. Grothaus, 72 Mo. 204., If then it was a fact that, when the order for appointment of defendant was made by the probate court of Johnson county, the minor’s domicile was in Bates county, then clearly such action by said Johnson county probate court was unauthorized and void. Where then was the domicile of this minor in the year 1889, when these two conflicting appointments were made ? The circuit court held it to be in Bates county, and as we think correctly, too. When such appointment was made, it is true the father was dead, but the mother survived, was then living and had her home, her domicile, in Bates county ; and it is beyond dispute that primarily the domicile of the parents, or of the survivor of them, is the domicile of the minor child.

But it is claimed that, before the father, James P. Harper, died, he gave the custody of this child into the keeping of defendant, then livingin Johnson county, and that by reason thereof its domicile had been changed. Even admitting the force of this contention, such a disposition of the infant had no effect beyond the period of the father’s life. A' rhe death of James P. Harper, his wife, Mary M., beca, c entitled to the custody, and was bound for the maintenance and support, of her minor child. She was, on, the death of her husband, the natural guardian of the child, and entitled to its care, custody and control. ‘R. S. 1889, sec. 5279. This right of the surviving mother was inalienable by any such agreement or conduct of the father as is here relied on. It was revocable during the life of the father, and stood as revoked absolutely at his death. In Matter of Berenice Scarritt, 76 Mo. 584; Weir v. Marley, 99 Mo. 484; In re Blackburn, 41 Mo. App. 622. And, further, although the father, residing and domiciled in Bates county, may hav<e intrusted the care and keeping of the minor to defendant, whose home was in another county, this did not eife.ct a change in the domicile of the infant. Although ‘ i. : with defendant in Johnson county, its domici - m red to be that of its parents in Bates county. L* heineke v. Grothaus, supra; Lewis v. Castello, 17 Mo. App. 596.

Again it is said, as the mother had several years before the father’s death been adjudged insane and sent to an insane asylum, and that, although she had been returned to and died at her home in Bates county, and that there had been no adjudication of sanity restored, that thereby she had lost her right to the custody and guardianship of her infant child. Now, in the first place the question of the sanity or insanity of the surviving mother has nothing to do with the matter of the domicile of the child, which must determine the jurisdiction of the court assuming to appoint its guardian. The mother’s domicile (whether she be sane or insane) is the domicile of the minor child. And, in the second place, the incompetency or unfitness of the mother for the duties of the guardianship can only be tried and determined by the probate court of the county where such mother is domiciled, and this, too, after ten days’ notice to such mother. The statute has provided in specific terms how and by whom this question of unfitness shall be tried and adjudged, and no other court or tribunal can assume to act in the premises. R. S. 1889, sec. 5281.

Other suggestions in counsel’s brief relating to admission of the record of the Bates county probate court, etc., we have examined, and find no error. We have here given our views on such questiohs as are material to the controversy, and such as deserve mention in an opinion. We conclude then that the judgment of the circuit court should be affirmed, and it is so ordered.

All concur.