Farrer v. Clark

29 Miss. 195 | Miss. | 1855

Mr. Chief Justice Smith

delivered the opinion of the court.

The appellee filed his petition in the court of probates of Pike county, praying to be appointed guardian of Margaret M. and Martha V. Neil, whom he represented to be the minor children, under the age of fourteen, of Mrs. Lydia Neil, and late of said county. It was further alleged that the petitioner was the natural uncle of these children, who, as heirs at law of their deceased mother, were entitled to a small personal estate.

The appellant filed his answer to the said petition, controverting the right of the petitioner to letters of guardianship as prayed for. He alleged that he was the guardian of the minors by the appointment of the court of probates of Amite county; that he had duly qualified as such, having given bond in said court as required by statute, and. that he had taken out letters of guardianship. The appellant filed with his answer certified copies of the bond and letters of guardianship. These copies were the only evidence offered by either party; and no fact alleged in the petition was denied by the answer.

Upon the case thus presented it was holden by the court that there was nothing to justify a refusal of the prayer of the petition; whereupon the appellant claimed to be entitled to the guardianship of the minors in right of his wife, whom he alleged was their sister- of the half-blood. The court, however, decided in favor of the petitioner, from which an appeal was taken to this court.

In the copy of the bond filed as an exhibit with the answer of the appellant, the wards are described as Margaret and Martha Neil of Amite county; and in the copy of the letters of guardianship they are described as the infant children of Win. P. Neil, deceased. These recitals were not evidence for any purpose whatever. Unless, therefore, the answer of the appellant, in the absence of any evidence to sustain it, is to be taken as true, there was no proof identifying the wards, or which showed that the court of probates of Amite county had jurisdiction to appoint a guardian of their persons and estates. We are of opinion, therefore, that the court was correct in overruling the appellant’s answer.

It is provided by statute, that “ the court of probates of any county in this State shall have power to appoint guardians to minors under the age of fourteen years,” and directing that preference shall be given in.all cases to the natural guardian or next of kin, if any such apply for the guardianship, and tender the proper security, unless such applicant be manifestly unsuitable to take the management of the person and- estate of such orphan. Hutch. Dig. 504, sec. 125. Hence there can be no doubt that Mrs. Farrer, as next of kin to the wards, was entitled to their guardianship, if she was not manifestly unsuitable to take charge of their persons and estates, unless her cov-erture were an impediment to the grant of letters.

We apprehend the same rule which applies in the appointment of administrators would control in regard to the appointment of guardians.

Coverture is no incapacity for the office of administrator; therefore if a feme covert be next of kin to the intestate, administration may be granted to her. But she cannot take administration, without the consent of her husband, inasmuch as he is required to enter into the-administration bond, which she is incapable of doing. Toll. L. of Ev. 91. The right of administration seems always to have been a right which is strictly confined to the person entitled, and to which the husband by virtue of the marriage does not 'succeed. For in all cases in which the feme covert is entitled to administration'as next of kin, administration is committed to her alone and not to her and her husband jointly; otherwise if he should survive he would be administrator contrary to the provisions of the statute. Lom. on Ex. 147.

Applying this rule, we are of opinion that coverture is no incapacity for the office of guardian. But in the ease at bar the application for. letters of guardianship was not made by or for Mrs. Farrer. It was made by the appellant, who claimed the guardianship in her right as his wife. There was, therefore, no error in disallowing his claim and granting the guardianship to the appellee.

Decree affirmed.