155 N.Y.S. 1020 | N.Y. Sur. Ct. | 1915
The petitioner having the care and custody of .an infant and being the person with whom she resides, although not related to her, applied for his appointment as guardian of her person and estate during her minority. Upon the return of the citation, two maternal aunts of the infant opposed the application.
There is no allegation by the respondents that the petitioner is not a proper person to ¡have the guardianship of the infant, but they claim such right of guardianship on the grounds of
The events which resulted in the petitioner having the present custody of the infant are as follows: In March, 1913, the mother of the infant, who was a widow, entered the employ of the petitioner as a domestic, 'bringing with her the infant in question, then about four and one-half years of age. She remained in the employ of the petitioner until July, 1914, at which time, being stricken with illness, she went to a hospital, the infant remaining in the care and custody of the petitioner and his family with whom she, the mother, left a memorandum reading as follows:
“ July 28 1914
“ It is my wish that my little daughter Margaret relaman (sic) in the charge of Mr and Mrs Vaupel until my return to claim her
“ Elites Cross/-’
She remained at the hospital until about May, 1915, and then went to live with the sister, one of the respondents in this proceeding, who at that time with her husband occupied a furnished room. There she resided for about seven or eight weeks and then went to another hospital, where she died on June 19, 1915.
Upon applications of this kind it is well settled that the court should be guided in reaching a determination by considering what disposition is for the best interests of the infant.' (People ex rel. Pruyne v. Walts, 122 N. Y. 238; Matter of Annan, 74 Hun 19; Foster v. Mott, 3 Bradf. 409; Ullman v. Ullman, 151 App. Div. 419.)
The petitioner lives in a private house, which he owns, in a pleasant residential section of the borough of The Bronx; his family consists of himself, his wife, three daughters and one-
One of the respondents resides in the borough of Brooklyn, has two infant children of her own, and with her husband and children occupies an apartment of four rooms in a tenement house. Her husband is employed as a motorman and .earns $20 per week which, so far as the evidence discloses, is the sole income of the family. The other respondent is childless and occupies an apartment of three rooms in a tenement house in the borough of Manhattan, and her husband earns the sum of $15 per week, which appears to constitute his sole income. Both of the aunts also -expressed their willingness that the infant’s property he conserved for her, and I am satisfied that the respondents are people of the same good character as the petitioner..
That in proceedings of this character, the entire matter rests-in the discretion of -the surrogate is well settled and requires no.citation of authority; and it is a discretion weighted with great
Considering then the child’s welfare from a material standpoint only, I am satisfied that it would not be advisable to tear her from the home which she has now enjoyed for upwards of two years, and from the family circle of which she has become a beloved member. Are there then any reasons which should move this court to deny the petition and change the custody of the child under these circumstances ? There is testimony that the mother three weeks prior to her death told one of the respondents that she wished this respondent to have the custody of the infant in the event of her death, but it also appears uncontradicted that during all of this time the infant resided with the petitioner, and, although the child and one of the petitioner’s daughters visited the mother at the home of the respondent on numerous occasions, there is no evidence to show that the mother ever requested that the custody of the child be transferred to the aunt, other than that stated.
I do not feel warranted upon this evidence alone in denying the petition, bearing in mind the fact that for some years there had been strained relations between the mother of the infant and the two respondents, and also the written evidence of her desire to have the child remain with the petitioner and his wife. The latter, while not showing conclusively that she wished the child to remain with the petitioner' in the event of her death, indicates at least that she felt that the infant would he safe in
Relationship to the infant is also urged, but the trend of authority is that while relatives will be preferred to strangers, all things being equal (Smith v. Smith, 2 Dem. 43), such preference will not be given unless the court is satisfied that the welfare of the infant will be promoted thereby. (Code Civ. Pro., § 2649.) In Matter of Vanderwater (27 Wkly. Dig. 314, affd., 115 N. Y. 669) the Court of Appeals says: “ Whether a guardian shall be appointed, and whether he shall be selected outside of the relatives of the infant, is a matter of discretion committed to -the surrogate.” Other cases in which this principle is recognized are People ex rel. Brush v. Brown (20 Wkly. Dig. 516); Matter of Lamb’s Estate (supra) ; Holley v. Chamberlain (1 Redf. 333) ; Burmester v. Orth (5 id. 259).
The final ground of opposition, however, is one which has caused me the gravest concern. It appears that the petitioner is of the same religious faith as the mother of the infant, his wife is of another faith, and his children have been taught in the faith of the mother, and the respondents contend, and I
If, however, the temporal welfare of thé child can be secured and her religious training in the faith of her mother also he directed, then I believe that the court should follow the course which would have such a result. The petitioner in this proceeding expressed his willingness to have this child brought- up in the faith of her deceased mother, and the court is not without precedent showing that the appointment of a guardian may be conditioned upon the infant receiving instruction in a specified religious faith. (Matter of Lamb’s Estate, supra; Matter of Mancini, 89 Misc. Rep. 83.)
This being so, I reach the conclusion that the present custody of the infant should not he changed and the petitioner should be appointed the guardian of her person and estate, upon the conditions, however, that the child receive religious instruction and training in the faith of her deceased mother until she arrives at years of discretion, and that the petitioner permit the respondents to visit the child at such times as may be reasonable.
In making this disposition, I do not criticize the action of the respondents in opposing this application. I believe that their motives were of the highest and were actuated by an unselfish interest in this orphan child which merits sincere admiration. In awarding guardianship to the petitioner, it is to be hoped that the controversy between the petitioner and the respondents, which I trust has now been concluded, and which
Petition granted.