People ex rel. Boice v. Boice, 39 Barb. 307

People ex rel. Boice v. Boice

39 Barb. 307 | N.Y. Sup. Ct. | 1862

By the Court,

Hogeboom, J.

At the time these proceedings were had before the county judge of Ulster county, the law of 1860 (chap. 90) was in force; the 9th section of which declares that “ every married woman is hereby constituted and declared to be the joint guardian of her children with her husband, with equal powers, rights and duties in regard to them Avith her husband.” This was a valid act of general legislation, not interfering with vested rights, and materially curtailed the right of the father and enlarged that of the mother in regard to the guardianship) and custody of infants. It placed the father and the mother upon strict legal equality, and it does not in terms, nor in my opinion in legal effect, limit the guardianship of the wife to the period of coverture. The law must be liberally construed to effectuate *310its obvious intent, which was to enlarge the sphere of maternal authority. I am of opinion, therefore, that the power would survive to the wife in case she survived her husband. If so, it would seem to be inconsistent (in case of the survivorship of the wife) with those provisions of the revised statutes, (2 R. S. 150,) which confer upon the father the power of appointing a testamentary guardian, and, as a later expression of the- legislative will, must be deemed pro tanto to repeal those provisions. Hence the power attempted to be exercised in this instance by the father was ineffectual, and the testamentary guardian had no right, as against the surviving wife, to the custody or guardianship of the infant. The mother was entitled to its custody and control, and to the aid of the writ of habeas corpus to free it from the illegal restraint of the pretended testamentary guardian, which illegal restraint in the case of an infant of such tender years as to be incapable of a voluntary selection of its protector, is not effectually removed until it is restored to the custody of its lawful guardian and surviving parent. (Mercein v. People, 25 Wend. 73. People v. Chegaray, 18 id. 637. People v.-, 19 id. 16. People v. Porer, 1 Duer, 709, 724. People v. Cooper, 8 How. Pr. Rep. 288, 296.)

The order of the county judge was therefore proper at the time it was made.

But by the law of 1862, (chap. 172, § 2,) the 9th section of the act of 1860, before quoted, is repealed, and it might become necessary to. determine the effect of this repeal upon the order aforesaid, and the question whether it did not revive the provisions of the revised statutes, were it not for the 6th section of the act of 1862, which is as follows: “Ho man shall bind his child to apprenticeship or service, or part with the control of such child, or create any testamentary guardian therefor, unless the mother, if living, shall in writing signify her assent thereto.” The terms of this act are too clear to admit of the supposition that the legislature designed to restore the power of appointing a testamentary *311guardian to the father, or to infringe materially upon the .mother’s right to the custody of her child of such tender years.

[Albany General Term, September 1, 1862.

Hogeboom, Peckham and Miller, Justices.]

On the merits of the case as to the question whether the mother or the uncle of the infant is the more suitable person to be entrusted With such a charge, if that question is a proper one for discussion on this application, I am of opinion that the testimony is by no means decisive, nor of such a character as to require us to deprive the mother of the custody of her child on any such ground.

I am of opinion that the proceedings before the county judge should be affirmed.

Judgment ád'ordingly.