Garth's Guardian v. Taylor

115 Ky. 128 | Ky. Ct. App. | 1903

Opinion onr the court by

JUDGE BARKER

Aeetrming.

On the 23d day of May, 1900, the judge of the county «court of Bourbon county, Ky., upon what purported to be a written nomination of Joanna Garth, an infant over the age of 14 years, appointed the Central Trust Company as her .statutory guardian. Under this appointment it continued to act until the 9th day of November, 1.901, when the order of May 23, 1900, was vacated and set aside upon the motion of Joanna Garth, by her next friend, Gurley Taylor. Afterwards, on the 23d day of November, 1901, the court entered the following order: “At the further hearing of this matter-, adjourned to this 22d day of November, 1901, the court, the appellant, Joanna Garth, having in its presence, and also by writing signed by her in the presence of the judge thereof after privy examination by him, nominated Oafesby Woodford, Esq., to be her guardian, doth hereby order and adjudge that said nomination be and the same is hereby, approved, and said Woodford is appointed to succeed the said Central Trust Company heretofore acting as her guardian. Said Woodford having qualified and given the security required by law, the aforesaid trust company, which is hereby superseded as guardian, is ordered to settle its accounts as such, and! turn over the control of said Joanna Garth and her property in their hands to its successor above named. To all of which the said Central Trust Company, as guardian of Joanna Garth, objects and excepts, and prays an appeal to the Bourbon circuit court.” Afterwards, on the 29th day of March, 1902, the case, on appeal to the Bourbon circuit court, came on for trial, and the court, by its judgment, held that the order of the county court of Bourbon county of May 23, 1900, appointing the Central Trust Company guardian of Joanna Garth, was void, and also adjudging that Catesby Woodford, appointed by order of the county court on November 22, 1901, is, and has been since that date, the guardian of Joanna Garth, and as such is entitled to control her person and estate. From this judgment the Central Trust Company is appealing to this court.

The only question for adjudication in this case is whether or not the. order of May 23, 1900, is void. Section 2022 of the Kentucky Statutes is as follows: “If a minor is fourteen years of age, he may, in the presence of the court, or by writing signed in the presence of the judge, after a privy examination, nominate his own guardian; but if the person so nominated is not approved by the court, or if the minor, after summons, fails to nominate a suitable person, or resides out of the State, or if the testamentary guardian fails for three months to qualify; the court may appoint a guardian of its own selection.” It will be seen that the above statute points out the precise, manner in which a minor of lá years of age may nominate his own guardian: First, he may .do it in the presence of the court; or, second, he may do it by writing.signed in the presence of the judge, after a privy examination. The statutes only authorize the nomination of a guardian by a minor in the manner set out. The statutory barriers are for the protection of the infant by enabling the judge of the county court to know himself that the infant is not under the domination or control of designing persons in his selection, and it 'enables the judge to protect the infant from the machinations of interested persons, who might influence him to his injury in the selection of a guardian. It is of the utmost importance to the infant that all of the provisions of the statutes protecting him from youthful indiscretion should be enforced, and this can only be done by firmly establishing the principle that the conditions upon which a minor may nominate his own guardian are jurisdictional, and, if they are not complied with, the nomination is void. It is conceded in this case that the writing purporting to be the nomination of the Central Trust Company by Joanna Garth was not signed in the presence of a judge of the county court, and that she was not privily examined by him.

(June 20, 1903.)

We are therefore constrained to hold that the order of May 23, 1900, was void, and, as this was the view entertained by the judge of the circuit court of Bourbon county, the judgment is affirmed.

Modified opinion by Judge Barker in response to petition by appellant for rehearing:

It is not necessary for a decision of this case to determine whether the, order of the county court was void or voidable, as in either event it was properly set aside.

So much of the opinion as holds it void is withdrawn, and no opinion is expressed as to whether the order was void or voidable.

The petition for rehearing is overruled.