In re the Guardianship of Johnson, 87 Iowa 130

In re the Guardianship of Johnson

87 Iowa 130 | Iowa | 1893

Given, J. —

1' StaJ^ap-0 fiesanappiai I. The appellant moves to dismiss the appeal upon the grounds that appellant, Diggs, is not a party to the proceeding, is not interested therein; that no judgment has been eirkered agaMst him, nor that affects any substantial right of his, in such manner as to entitle him to appeal. It requires no citations to show that in the appointment of guardians the controlling consideration is the welfare of the ward. It is a special proceeding to make an appointment, to which no person has a private right, whatever the preferences in his favor may be. Lawrence v. Thomas, 84 Iowa, 362. It appears from the record that this child was adopted by Mr. and Mrs. Johnson, by contract with the petitioner, under the laws of Dakota, whereby they became entitled to all the rights of natural parents; and the petitioner was relieved of all parental duties to the child, and surrendered all rights over it; that, Mrs. Johnson being deceased, Mr. Johnson appointed the appellant guardian of the child, as authorized by the statute of Dakota, in his will; that the appellant has cared for the child, in his home in Dakota, since the death of Mr. Johnson; and that he is a fit person to be guardian, and has petitioned the district court of Des Moines county to appoint him. This is a contest between Mr. Sturgis and Mr. Diggs for the appointment, and, under the facts alleged, Mr. Diggs has a right to be heard. The order was against his protest, and against his appointment. He certainly has the right to have his claims considered. The motion to dismiss the appeal is overruled.

*1342_.. testementary guardians. *133II. The appellant’s first complaint is that the court erred in striking his remonstrance. This remon*134strance is solely against the jurisdiction of the court, and is grounded upon the fact -¿la© appellant was appointed guardian of this minor in the will of Mr. Johnson, as authorized by the laws of Dakota. It is alleged in the petition, and found by the court, that Mr. Johnson was a resident of Des Moines county, Iowa, at the time of his death. It is further found that his last will and testament was duly admitted to probate in that county, as the place of his residence, and principal administration granted on the estate. The residence of Mr. Johnson being in Des Moines county, .that was the domicile of the child, and the court of that county had jurisdiction to appoint a guardian of its person, though it was not at the time residing in the county. Jenkins v. Clark, 71 Iowa, 552. Testamentary guardianship is not authorized by our present Code. It was allowed under the Code of 1851, section 1492, and under the revision of 1860, section 2544, but was omitted from the Code of 1873, though recommended by the Code commissioners. The Code, section 47, repealed all prior public and general statutes. The Codes of 1851 and 1860 were the same, and were .enactments of the common law on this subject, and hence their repeal could not have the effect of reinstating the common law. To so hold would be to deny any effect to the repeal. In Burger v. Frakes, 67 Iowa, 460, it is said " That the law prescribes that a parent may provide by will for the care and custody of a minor child.’* This is certainly true, but not as against the right of the proper court to appoint a guardian. It is not a recognition of the right of a parent to appoint a guardian by will. If Mr. Johnson had continued to reside in Dakota to the time of his death, and the domicile of this child had been in that state, the testamentary appointment of the appellant under the laws of that state might be a sufficient plea against the jurisdiction of the courts of this state *135to appoint a^ guardián; but, as the residence of Mr. Johnson was in Des Moines county, and as the domicile of the child was that of the parent, the testamentary appointment of the appellant under the laws of Dakota did not deprive the district court of Des Moines county of jurisdiction to appoint a guardian. It follows from this conclusion that there was no error in striking the appellant’s remonstrance.

3. —: —: ^ considered. III. The appellant’s other assignments of error are that the court erred in appointing the petitioner guardian of the person of said minor, in not appointing him guardian of the person and estate, and in refusing to take evidence to determine whether or not said child’s welfare would be better promoted in his care, or in the care of the petitioner. The record shows that the cause came on for hearing upon the motion to strike the appellant’s remonstrance. “The court, upon hearing the arguments of counsel, grants saidmotion, andthereupon made and caused to be entered thefollowing order and judgment in said cause.” The judgment finds that the petitioner is father of the minor, a citizen and resident of Iowa, and a fit person to be appointed guardian. “We will presume, in favor of the court’s findings, that legal evidence authorizing the decree was introduced, and considered by the court.” Henry v. Evans, 58 Iowa, 560. While we think the nomination in the will of a party as guardian should receive full consideration in the selection of a guardian, yet the fact that appellant was a nonresident of the state was a sufficient reason why he should not be appointed. The selection of a guardian is, of necessity, largely within the discretion of the court appointing, and it is only where there is a clear abuse of that discretion that this court will interfere. There is nothing in this record to show that the discretion was abused, and the order and judgment of the district court are affirmed.