139 N.Y.S. 685 | N.Y. Sur. Ct. | 1912
This is an application by the maternal aunt of the infant for letters of guardianship of the person and estate of an infant under 14 years of age. The facts are not much disputed.. Since the death of the infant’s mother many years since, the infant, who is a confirmed invalid suffering from an aggravated epilepsy, has lived and been supported solely by the hard earnings' of the maternal aunts. The aunts have devoted to it a care and affection very admirable and unusual. Now the child has come into some little estate, and the father, who has never contributed to the support of his child, opposes the aunt’s application, and asks to have one of his own nomination appointed guardian of the infant’s estate, and that he himself be appointed the guardian of the person of his child. The father is very wisely advised not to seek to be made the guardian of the child’s estate, for that' would be impossible under the circumstances disclosed to me.
To appoint the father the guardian of the person of the infant and to remove the child from the long accustomed and tender care of its self-sacrificing and devoted maternal aunts would, I am satisfied, be most prejudicial- to the delicate and sickly child, and most unfortunate for its physical well-being, happiness, and comfort. The child has never known any care or affection except that of its maternal aunts. To separate a feeble child from such affectionate care would be cruel in the extreme, and should be avoided if possible. To appoint the father guardian of the person would be to give him the control of its person and the expenditure of its little income, either directly or indirectly. This would not be in the child’s interest. Nor would it be proper, for it appears that the father has been a most wayward and mistaken young man, dissipating his own patrimony in a very brief time. It also appears that the father’s affairs are, or recently have been, greatly disordered, and that his prospects are even now doubtful or unsettled. It was owing to such facts, and others not noticed, but established, that the brief life of the child’s mother, as I am informed, was most unhappy and sad. I am of the opinion that, if I have any choice, the father should not be named a guardian of the person of the infant in this matter.
The question before the surrogate is not what form of religion would be most advantageous for the child, but what are the rights of the parties to care for her estate and temporal custody. The surrogate is the servant of the law, and he can have no right to obtrude his individual opinion on matters of faith on the parties who resort to this court for assistance in cases they are pleased to submit to the surrogate.
That the statute of this state conferring power on the surrogate to designate and appoint guardians of the person and estate of infants meant precisely what it said I have no doubt; nor had that distinguished surrogate of this county, Mr. Rollins. Derickson v. Derickson, 4 Dem. Sur. 295. The canon of equity in respect of the designation or selection and appointment of guardians was very complete in the year 1830, when the Revised Statutes took effect, and it was intended that the surrogate, in the selection and appointment of guardians, should be bound by that canon. It is sometimes the fashion to depreciate the jurisdiction of the courts of the surrogates, without, I think, taking proper note of the fact that never in the history of the common law has another court of probate been invested with such an extensive, historic, and splendid jurisdiction. The court of the surrogate is, in the first place, an original court for all contentious probates. In contentious probates the Appellate Division is, however, by law the ordinary, and the surrogate, as his title implies, is in reality only the delegate in conformity with very old practice in probate courts. Matter of Will of Irving, 138 N. Y. Supp. 784, App. Div. 1st Department, Decisions, 1912. The surrogate also has jurisdiction to settle and distribute estates of the dead in the manner formerly cognizable only in the courts Christian and the Court of Chancery combined. It now may sit, when duly invoked, also as an original court of construction of wills and devises, and then its jurisdiction is nearly as complete as the quondam chancellor’s. In addition to all this, it is the chief, or one of the chief, assessors of the state. It also appoints guardians in the same manner as did the chancellor. Those who underestimate such an extended and complex jurisdiction are apt to have little acquaintance with the history of jurisdictions at common law. The trouble in this court is not with the jurisdiction of the surrogates, but to be equal to the jurisdiction imposed and to apply andl exhaust it in conformity with the great body of law governing it. This law is as binding on the courts of appeal as on the surrogates. There is no authority in any appellate court to apply a different kind of law excogitated out of different sources of law. The established law which governs the surrogate must be applied in every other court of the state whenever the surrogate’s judgments and jurisdiction are open to review. As matter of course, and as has always been the case with courts of this character, if a surrogate usurp jurisdiction, he should be and is rebuked and checked. But the power clearly conferred on the surra
The statute regulating guardians reads that the surrogate has the like power and authority to appoint a general guardian of the person or the property, or both, of an infant which the chancellor had when his great office was abolished in the year 1846. Section 2821, Code Civ. Proc. I take it so plain a statement is not open to equivocation, and that the surrogate is to be controlled by the equitable canon which controlled the chancellor under like circumstances. Matter of Wagner, 75 Misc. Rep. 426, 135 N. Y. Supp. 678.
By the law of this state, it is the father, and not the aunts, who has the right to determine the religious belief of an infant under 14 years of age. Matter of McConnon Infants, 60 Misc. Rep. 22, 112 N. Y. Supp. 590; Matter of Crickard, 52 Misc. Rep. 63, 102 N. Y. Supp. 440; Matter of Jacquet, 40 Misc. Rep. 578, 82 N. Y. Supp. 986, citing Matter of De Marcelin, 4 Redf. Sur. 299, affirmed 24 Hun, 207. The same conclusion is now reached in England, even where there is a settled state religion. In re Scanlan Infants, L. R. 40 Ch. Div. 200, 213; Eversley’s Law of Domestic Relations (2d Ed.) 523. The modern English law even goes so far as to hold that the father cannot alienate this right, and, even if he contract by an antenuptial agreement to bring the children of the marriage up in the mother’s faith, the modern English law enables him to revoke the consent. 1 am free to say that the conclusion of the modern English courts on this point does not appeal to me. Of course, such a rule could not be the law of this o state. It is the ancient decisions of England, rendered on the primitive common law of England, while in political control of New York, that form an integral part of- our common law.
The father even yet, in contemplation of our common law, is priest and king in his own household. 1 Bla. Com. 453. Even if he is an unworthy father, he is not ipso facto dethroned, and he retains a right to regulate the religious welfare of his own infant. • Matter of Crickard, 52 Misc. Rep. 66, 102 N. Y. Supp. 440. I am, I think, obliged by law to defer to the expression of the father’s wish for the religious-training of his infant child.
As.the estate of the infant was derived wholly from its mother’s-side, I shall in this instance defer to that very old maxim of our common law, “materna maternis, paterna paternis,” as it is still discernible in the statutes, regulating descents and successions ab intestate in this, state. I nominate and appoint the infant’s maternal aunt, this petitioner, Florence R. Cooper, the sole guardian of the estate of the infant. The estate came from the mother’s side, and in this instance-there it should stay for the present. I nominate and appoint the aunt also a joint -guardian of the person of the infant, together with Mrs. Clara Stone Marshall, of No. 3120 Broadway, New York City, a lady in religion of the Catholic faith. This lady is of my own selection.. So kindly and gentle a person will be sure to represent the father’s-faith in a proper way without detriment to the child’s health. If the guardians of the person cannot agree, and I feel assured that two such excellent women can agree even in so delicate a matter, either may have liberty to apply to the surrogate from time to time on notice to-the other during their joint guardianship, and he will then direct them, further in the premises.
Decree accordingly.