On thе 31st -day of March, 1913, defendant in error,- W. N. Lewis, filed in the county court of Murray county his petition, asking to be -appointed the guardian of Susie Ann Parker, the four year old daughter of Joseph Parker and Josie Parker, deceased. In his petition, Lewis states that he is acting upon, the request of M-ary Ann -Cobb-, maternal grandmother оf said minor child, and David Shelby, district Indian agent.’ -On April lltli following, Joseph Parker filed in said court his protest -against the appointment of Lewis as guardian of his minor child, and asked therein that the court *809 appoint his father, John Parker, the child’s guardian. A trial being had, and all interested parties being present,- the court appointеd W. N. Lewis guardian both of the person and estate of said minor, and directed that letters of guardianship issue to him upon his qualifications according to law. From this order an appeal was prosecuted to the district court, upon questions both of law and fact.
The case coming on to ibe heard in the district court, Joseph Parker obtained leave to file therein an amended protest, in which -he -asked that the court appoint him guardian both of the person and estate of said -minor, but that, in the event the court .should be of the o-piinon that it was -to the best interest of said minor and her estate, the court appoint his father, John Parker, guardian. The decree of the district court affirmed that of the county court, and in -addition ordered that the custody of the child be awarded to its maternal grandmother, Mary Ann Cobb. From the decree both John and Joseph Parker have appealed to this court.
On the part of plaintiffs in error it is earnestly insisted that the district court erred in not appointing Joseph Parker, father of Susie Ann Parker, her guardian, and section 6530, Rev. Laws 1910, and other -sections of the statutes, are relied upon as grounds for reversal. Counsel -a-lso cite the opinion of this court in
Jamison v. Gilbert,
By section 12, art. 7, of the Constitution, the county court, coextensive with the county, is vested with original jurisdiction in all probate matter
(Davis, County Judge, v. Caruthers, Dist. Judge,
While by section 16, art. 7, Constitution, i-t is provided that, on appeal -to the district court in probate matters, the cause -shall be tried
de novo>
upоn questions of both law and fact, we are .not to understand that thereby new and distinct issues may be made for the first time. A -trial
de novo
has a well-defined and generally understood meaning, and -does not contemplate the
*811
framing of new and different issues in the appellate court. In
Ex parte Morales
(Tex. Cr. App.)
“The case is to be tried in the appellate court upon the same issues that were presented in the lower сourt;”
It must be kept in mind that the county court was exercising original jurisdiction, while the district -court had appellate jurisdiction only. The expression “appellate jurisdiction” ■ refutes the idea of joining new issues in a court of such jurisdiction.
In re McVay’s Estate,
Nor do we think our -conclusion is affected by either of sections 6514, 6515, 6519, Rev. Laws 1910, for the question here is not one of practice or procedure, but of jurisdiction. In fact, the second of the above-numbered sections expressly provides that the appellate court has the same power to- decide the questions of fact which the -county -court o-r judge had.
Discussing appeals from probate courts, -the rule is announced in 3 Cyс. 262, to be:
*812 “On such appeals the- superior court tries the case de novo and renders such judgment or makes such order as the probate court should have rendered or made.”
In Cooper,
Adm’r, v. Armstrong, Guardian,
In
Matter of Estate of Campau,
In
Elder et al. v. Whittemore, Adm’r,
“Rut we do not know of any authority or power in the circuit court, purely appellate, to entertain, on appeal, this new ■and original claim for interest and profits-. The trial of what was properly triable in that court was de nova, but a new ease by amendment of or addition to the exceptions filed in the county court could not properly be made.” •
Further in the opinion it was said:
“This would have been to do indirectly what the court had no power to- do directly — really, to take original jurisdiction in the matter of -tire settlement of an estate of a deceased person, and the accounts of an administrator, which the Constitution gives to county courts only.”
*813
In
Grider, Adm’r, v. Apperson,
In
Graham v. Burch,
In
Mallory’s Appeal,
It follows, from what has -been said, that, the district court not having jurisdiction to appoint Joseph Parker, guardian, the' court’s action in refusing to do so cannot be assigned as errоr' in this court.
Did the court err in making the order of appointment that it did, and in not appointing tire grandfather the child’s guardian? Lewis was in no way. related to Susie Ann Parker, while John Parker was her paternal grandfather. W. N. Lewis is a (member of the bar of this court and, as members of the court know, is a cultured Christian gentleman. He reluctantly undertook to act as guardian of the child at the request of its grandmother. The responsibility was not one of his own seeking. John Parker, the child’s grandfather, all of the testimony shows, is a full-blood Chickasaw Indian, a respected citizen, and a successful farmer, the owner of -several hundred acres- of land, and that he and his children, including Susie Ann’s father, are regular church -and Sunday -school attendants. It appears that in the district court the evidence brought out principally the question of the fitness and competency of the maternal grand *814 mother and the -paternal grandfather to- have the custody of, care for, and look after thе child’s interests. But the true controversy is not between these two. The county court appointed Lewis, and not Mary Ann Cobb, the child’s guardian, so- that the question is not one of fitness and competency between two relatives equally entitled to- the child’s custody, but, as already seen, between a relative on the one hаnd, and a stranger on the other. Section 3332, Rev. Laws 1910, says that, of two persons equally entitled to the -custody in other respects, preference is to be given as follows: First, to- a parent; second, one who was indicated by the wishes of a deceased parent; third, to one who already stands in the position of trustee of a fund to be applied to the child’s support; fourth, to a relative. Whatever right the father had to the appointment he has expressly relinquished in favor of his father. -At the time Joseph Parker lived with his father, John Parker. The evidence shows clearly that the latter was well able to care for and loоk after the interests of his1 grandchild, and it may not be unfair to assume that it was due to this fact that the father executed the waiver of his preference right to guardianship-. Anyway, as he is not asking to be appointed, -the first provision of the -section is not before us for construction. As to .the -second provision, there was intrоduced a writing signed by Josie Parker, deceased, dated February 11, 1913, some nine days- prior to her -death, in which she -stated:
“I want my mother to take my little girl Susie Ann Parker. If my mother dies before mjr little girl is of age, I want my brother Jim Alexander to take my little girl and keep her until -she is of age.”
But we do not understand, and.cannot hold, that this provision -of the statute gives to a deceased parent the right to designate a guardian where the other parent is living, and in exclusion of his rights.
In re
Allen,
In Spaun v. Collins 10 Smedes & M. (Miss.) 624, it was said -by Chief Justice Sharkey that, when it is manifest that the next of kin is in all respects suitable to -take the management of -the person and estate of the orphan, he has a legal right -to- he preferred; and if the probate court may, under such circumstances, disregard his claims, the statute is a dead lettex*. There the contest was between the uncle of the minors and a stranger
In
Allen v. Peete,
In Albert v. Perry, 14 N. J. Eq. 540, it was held that the mother, and after the mother the next of kin of -an infant, was entitled to be appointed guardian of a minor under 14 years, and such claim could not be disregarded, unless for some satisfactory reason apparent to the court.
As between an uncle and a stranger, in Morehouse et al. v. Cooke, 1 Hopk. Ch. (N. Y.) 226, it was said that, other things being equal, the uncle is preferred as guardian.
While the child, its father, and grandfather, as well as its maternal grandmother, are all full-blood Indians, all are shown to be intelligent and highly reputable citizens. It appears that the grandmother is- very devoted to the child, whose possession she had since the death of her daughter. Thе evidence establishes -the fact that she has reared and educated several orphan children; and, while neither she nor her -present husband are possessed of much means, -there is no room for doubt as to her competency, -so far as fitness is involved, to act as- guardian for her grandchild. However, wе are not called upon to decide the relative claims of the grandfather and the grandmother to the guardianship of -the minor, but instead that of the grandfather and a stranger. In deciding this quesiton, we are concluded by the terms of the statute. What we have said is in no wise in conflict with the statute which directs that, in the -apрointment of general guardians, the court should be guided by what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare, as ¡announced in
Brigman v. Cheney,
The judgment of the lower courts are • therefore reversed, and the ca-use remanded for further proceedings not inconsistent with this opinion.