3 Bradf. 130 | N.Y. Sur. Ct. | 1855
The father of Mary Jay Dawson, a minor, was a native of England, whence, at the age of sixteen years, he came with his father to this country to reside. He subsequently renounced his allegiance to the Grown of Great Britain, and became a naturalized citizen of the United States. His residence was in the city of Hew York from anterior to his marriage until his decease in 1852. The mother of the infant was a native of the United States and a resident of this city, where she died in 1846. The minor- was born in Hew York in- the year 1842, and inherited from her mother a large estate situated in this place.
In June, 1852, 1 appointed Miss Mary Ann Dawson, a paternal aunt,guardian of the infant, after objections made on the part of some of the maternal relatives had been withdrawn, upon the consent of the guardian being given that her ward should continue to reside in the United States. Miss Dawson having subsequently retracted that consent, and expressed her desire to renounce her guardianship, her letters were superseded in October, 1852, and Miss Eliza 0. Jay was appointed in her stead. Her ward being concealed, Miss Jay thereupon instituted a suit in the Supreme Court, and procured an injunction to restrain the removal of the minor from the State. The service of this process was avoided until the infant was clandestinely taken to England. Miss Jay proceeded to that country, and set on foot proceedings for the purpose of procuring the custody of her ward, in which she was not only unsuccessful, but was ordered by the Court of Chancery to transmit the income of the minor’s property to England, to be disposed of under the direction of that court. The present application is made to me for instructions in respect to a compliance with the order of the Lord Chancellor, and also for an allowance of the expenses incurred in the attempt to recover the custody of the minor.
Some remarks which fell from Sir John Stuart, the Vice-Chancellor, in respect to the jurisdiction of the Surrogate’s Court, render it necessary to correct a mistake as to the powers of this court. And first, as to the appointment of
It is a great mistake also to suppose that the consent of relatives residing in the county, or indeed of any relatives, is requisite to the appointment of a guardian. The authority of the Surrogate is entirely unlimited in this respect. The relatives have no control in the matter whatever. They have no interest as parties, but receive notice merely to inform the court, so as to make the best appointment for the welfare and interests of the child. For example, in the present case it was entirely competent for the Surrogate to have appointed Frederick Dawson or Robert Lee Dawson guardian, provided
Hor are the powers of a guardian appointed by the Surrogate limited or restricted by locality more than in the case of any other officer in this State. He is recognized as the lawful guardian throughout the bounds of the State.. Of course he cannot, in a strict sense, exercise authority out of this State. But that limitation is not peculiar to a guardian appointed by the Surrogate. In the very nature of things, it appertains not only to all State officers, but also to the courts, which, not possessing extra-territorial jurisdiction, can give no extra-territorial authority. A guardian appointed by a Surrogate is no more a local officer than an executor, administrator, or than a guardian appointed by the Court of Chancery. (Morrell vs. Dickey, 1 Johns., C. R., 156). In his opinion in Miss Jay’s case, the Vice-Chancellor said, “ It seems, therefore, that the appointment of Miss Jay to be guardian by the Surrogate of Hew York, is so strictly local, that she could not, according to the American law, exercise it in the neighboring State of Maryland.” That is true, but it does not depend on the fact that the guardian is appointed by the Surrogate, for in' making the appointment the Surrogate acts by authority of the People of the State of Hew York, and the People of Hew York have no authority in the State of Maryland. Except as connected by the Constitution of the United States, which does not touch at all the civil, domestic government, Hew York is as much a foreign State relatively to Maryland, as England is relatively to France; and a guardian appointed in Hew York, no matter by what court, has just as much authority in Maryland, no more, and no less, as a guardian appointed by the Lord Chancellor of
In the present case there can be no doubt that the domicil of the minor was and is in the city of Hew York. The place of birth, or the domicil of the father, regulates the domicil of the child. Mary Jay Dawson was born in this city, and her father resided here at the time of her birth, and thence till his decease. This, then, was her domicil of origin. The domicil of origin can be changed only by choice, and the domicil of choice being that which the person himself establishes, it