Harding v. Brown, 227 Mass. 77

227 Mass. 77 | Mass. | 1917

Braley, J.

The petition as amended asks that the decree appointing the respondent guardian of Virginia M. Harding, minor daughter of the petitioner and Loma R. Harding, his wife now deceased, be revoked, and, in the alternative, that she may be removed. By R. L. c. 145, § 1, and § 4 as amended by St. 1902, c. 474, and by St. 1904, c. 163, the court of probate is given original jurisdiction over the appointment of guardians of minors and of insane persons, and the validity of the decree is attacked on the ground that the citation on the petition contained no allegation “that the father was an unfit person to be guardian of his . . . daughter.” Before the St. of 1902, c. 474, notice was not essential to the validity of the appointment of a guardian for a minor under the age of fourteen years. Gibson, appellant, 154 Mass. 378. But, the statute having provided that if the parents or surviving parent consented the court might order that the guardian should have the custody of his ward, and “may so order if upon a hearing and after such notice to the parents or surviving parent as it may order it finds one of them unfit therefor and the other files in such court his or her consent in writing to such order,” and the petition for guardianship, to which the mother who was then living consented, having alleged the father’s unfitness, it became necessary before jurisdiction could be obtained to give notice to him of the proceedings so that he could appear and contest the allegation. The form and mode of service are left by the statute to the discretion of the court, and the single justice found that no rule as to the form had ever been submitted to and approved by this court under R. L. c. 162, § 29. But, however desirable uniformity in practice of the courts of probate may be, this omission did not do away with the authority conferred. Osgood v. Osgood, 153 Mass. 38. It was a question for the court to decide, and the fact that the notice contained no reference to the statement of his unfitness did not vitiate its force or effect.

Nor is the misnomer of the father’s name and his description as “one of the next of kin” fatal. The strict rules of the common law as to pleading and practice do not obtain in the procedure of our courts of probate. Codwise v. Livermore, 194 Mass. 445, 447. The object had been accomplished when the notice was received in time for the petitioner to enter an appearance and contest the appointment. Osgood v. Osgood, 153 Mass. 38.

If the father’s former counsel, whom he alleges he retained, failed to follow his instructions to appear and oppose the granting of the petition, this failure affords no ground on which the jurisdiction can be assailed.

We are aware that the reasons of appeal set forth other alleged errors going to the jurisdiction, but the reasons of appeal are founded on the petition, which having contained no allegations raising these issues, they need not be considered. Harris v. Harris, 153 Mass. 439, 441. Cowden v. Jacobson, 165 Mass. 240, 241.

It must therefore be held that the court had jurisdiction of the subject matter and of the parties, and, it being plain from the recitals that the material allegations of the petition were found to be true, the decree cannot be set aside, although if the present petitioner had appeared the result. might have been different. R. L. c. 162, §§ 1, 2. Thompson v. Goulding, 5 Allen, 81, 82. Clapp v. Thaxter, 7 Gray, 384, 386, 387. Connors v. Cunard Steamship Co. Ltd. 204 Mass. 310, 322.

But, if the decree must stand, a guardian who becomes “incapable of performing his trust or is unsuitable therefor” may be removed under R. L. c. 145, § 22, and upon his removal another may be appointed in his stead. “The statute does not attempt to enumerate the causes, but gives the judge of probate a broad discretion to include various cases that may arise.” Thayer v. Homer, 11 Met. 104, 110. The findings of the single justice fail to show any attempt by the respondent to alienate the child’s affections from her father, and after stating in substance that she has been well and affectionately cared for, he concludes by saying that as matter of fact “I do not find the allegation of Mrs. Brown’s unsuitableness to be proved.”

It appears, however, and the justice states that “If material, the minor is being brought up as a member of the Baptist Church contrary to the wishes ... of the petitioner who is a member of the Roman Catholic Church,” and it is further found that her mother when living and her guardian- “both attended the Baptist Church.” But, no appeal having been taken from the decree, of which the petitioner procured a copy in ample time if dissatisfied to have appealed to this court, the question whether the original appointment was suitable has been finally adjudicated. Clapp v. Thaxter, 7 Gray, 384, 386, 387. It is to be assumed on the record that the parents were equally interested in the spiritual welfare of their child, and if during the mother’s life time and since her death the daughter attended the services of the church with which her mother was affiliated, it is not found that the conscience of the minor has ever been subjected to constraint. It was held in Dumain v. Gwynne, 10 Allen, 270, 271, that while the father is usually entitled to the custody of his children of tender years, yet the rights of the mother and welfare of the child are to be considered in deciding as to whom custody shall be awarded, and by R. L. c. 145, § 4, as amended by Sts. 1902, c. 474; 1904, c. 163, the rights of the father and mother to custody are declared to be equal. Doubtless in cases of controverted custody due weight should be given to parental relations and desires, but the controlling consideration is the present and future interests of the child. Stone v. Duffy, 219 Mass. 178, 182. See DeFerrari v. DeFerrari, 220 Mass. 38; Tornroos v. R. H. White Co. 220 Mass. 336; R. L. c. 152, § 28; c. 153, § 37; In re McGrath, [1893] 1 Ch. 143. The mother’s choice was the present guardian, and although the wishes of the petitioner, who is the surviving parent, as to the religious training and environment of his daughter should not be disregarded, we are unable to say on the record that the respondent should be removed where it seems reasonably certain from the facts stated in the report that the ward’s welfare and happiness do not at present require the change. Purinton v. Jamrock, 195 Mass. 187, 199, 200. Nicholson’s appeal, 20 Penn. St. 50.

We do not intimate that the provision in a decree of guardianship giving the custody of the minor to the guardian although there is a parent or parents living cannot be reviewed in the light of subsequent events if the welfare and happiness of the ward require that that should be done. The petition now before us is not such a petition.

A majority of the court are of opinion that the decree of the court of probate dismissing the petition should be affirmed.

Ordered accordingly.