22 Barb. 178 | N.Y. Sup. Ct. | 1854
This is a proceeding upon habeas corpus, instituted by the relator, to obtain possession and custody of her infant daughter, Theresa Wilcox, who was eight years of age in December last. The relator was married to Nathan B. Wilcox, a son of the respondent, in February, 1838, and who died in February last, leaving him surviving the relator, his wife, and two infant daughters, Theresa and Charlotte ; Charlotte being two years younger than Theresa. At the time and after the birth of Theresa, the relator was in such feeble health that she was
It appears from the testimony given before me, upon this investigation, that the relator is a lady of refinement and education, entirely competent to have the nurture and education of her children committed to her; and it .appears quite satisfactory, from the evidence, that the child has been uncommonly well cared for in the family of the respondent, and that they are very much attached to the child, and the child very much attached to them ; and I entertain no doubt but the wife of the respondent has proved herself a faithful mother to the child, and that she is entirely competent to the proper discharge of all the duties of nurture and training, which the interest of this child may require. And I entertain as little doubt, from the evidence before me, that no detriment can arise to this child from any want of respectability of the family in which she has been thus far reared. The respondent and his family have maintained a respectable standing and position in society, and the long acquiescence of the relator and her father in the residence of this child in the respondent’s family implies all this. I do not attach very much importance to the unguarded, and to say the least, highly improper and violent expression of the respondent at the time the relator called with Mr. Mygatt to obtain her child. They were words spoken under a very high state of excitement, and it is but charitable to attribute them to an outburst of uncontrollable feeling. I cannot think the respondent is a man of general profanity, or of ungovernable passions. The relator having resided in his family must have known him well, and if such had been the case I cannot think she would have consented to have the child remain so long in his family; and we should reasonably expect that if such was the case, some general evidence at least of the fact would have been given on this investigation. The case is not one free from embarrassments, as to the duty of the court in regard to the determination which-
This brings me to consider the legal objections raised by the counsel for the respondent. It is claimed and insisted in this behalf, that the respondent' is the legally constituted guardian of this child, and as such is entitled to her custody and control. I am entirely satisfied, after a careful examination of the matter, that the appointment of the respondent by the surrogate of Oneida as the general guardian of Theresa is valid until reversed, and that it cannot be assailed in this collateral way, by proceedings upon habeas corpus. (The King v. Hopkins, 7 East, 579. Ex parte Hopkins, 3 P. Wms. 155. T'he King v. Deleval, 3 Burr. 1436. 10 Ves. R. 66, note 4. The People v. Mercein, 8 Paige's R. 47.) There are three objections raised to the legality of this apportionment. The first is, that the surrogate did not assign a day for the hearing, but made the appointment on the same day the petition was presented. The statute seems to be imperative that the -surrogate shall assign a day. (2 R. /S'. 157, § 5. 9 Paige's R. 206.) The surrogate
The second objection is, that no notice of the application, or of the hearing, was given to the relatives of the minor residing in the county. The answer to this objection is, that the statute confers a discretion upon the surrogate, in this respect. The statute, as originally framed and enacted in the revised statutes, seems to have contemplated that all of the relatives residing in the county should be notified. (2 R. 151, § 5.) But the act of 1831 has modified the provisions of the revised statutes in this respect, by declaring that notice shall be required to be served on such relatives only of the minor as the surrogate shall direct. (Laws of 1847, p. 532, § 44. 9 Paige's R. 207.) There is nothing in the papers before me to show that this statute was not complied with. The third objection is, that the application to the surrogate was fraudulent in alleging the residence of the relator in Florida, when the petitioner knew she was a resident of.this state. We cannot attach much importance to this objection, for there is nothing in the statute which would require notice to be given to the relator, as her residence was in the county of Chenango; and besides, I have not been able to discover the fraud in this respect imputed. The respondent being the lawfully constituted guardian of the infant, and possessing under the statute the same powers of a testamentary guardian, (2 R. S. 157, § 9; Id. 150, s 1,) it is claimed and insisted, that while this child is in the custody of the respondent, she cannot be deemed under illegal imprisonment or restraint, by his simple refusal to deliver her to the relator. This position, it seems to me, is too clear to require discussion or elucidation. I will not go through with a review of the cases to prove this position. This labor has been mos.t faithfully performed by Judge Duer of the superior court of the city of New York, in the case of The People v. Porter, (1 Duer. 709, 719, 720.) I will content myself by referring to the opinion of judge Duer
The. counsel for the relator claimed and insisted, upon the argument of this case, that upon this writ and these proceedings, I possessed all the powers of the late court of chancery, and that admitting the legal custody of this child to be with the respondent, a court of equity possesses a controlling and superintending power over all guardians, and will take the infant from the guardian and deliver it to another, whenever the welfare and interest of the infant requires it. The question presented is one of jurisdiction. If I am to be considered as invested with the powers of the court of chancery, in the execution of the proceedings upon this writ, then there is no question of jurisdiction. The power of a court of equity in such a case is not to be questioned. It rests upon undoubted authority, and I will content myself with a reference to a few cases. (De Manneville v. De Manneville, 10 Ves. 5. Creuse v. Hunter, 2 Coats Cas. 242. Wellesley v. Wellesley, 2 Blights Par. Rep. N. S. 124. 1 Dow &f Clark, 152. 5 Paige, 597. 8 id. 47. Forsyth's Custody of Infants, 704,705. White's Eq. Cas. 500. 2 Story's Eq. Jur. § 1341. 2 Kent's Com. 227,3d ed. 2 John. Ch. R. 439. 8 Cowen, 359.) The jurisdiction is the same over testamentary guardians and guardians appointed by the surrogate, as it is over guardians appointed by the court itself. (2 John. Ch. R. 439. 8 Cowen, 350. 8 Paige, 47. 2 Kent's Com. 227, 3d ed. 4 John. Ch. R. 80.) Under the exercise of this jurisdiction a court of equity will control the guardian, by taking from him the infant and delivering it to its mother, or other person, whenever the interest of the infant requires it. And were the same facts which have been established in this investigation to appear before me at any stated term of the court, either by petition or in a plenary suit, I should deem it my duty, for the reasons above stated, tó order and direct the respondent to de
The supreme court, as at present organized in this state, possesses all the powers of the late supreme court and the court of chancery-; and by the 76th section of the judiciary act, commonly so called, the justices of the present supreme court possess all the powers and jurisdiction of the former justices of the supreme court, the chancellor, the vice chancellor and circuit judges. (Laws of 1849, p. 323, § 16.) The argument submitted by the counsel for the relator upon this branch of the case is substantially this: that as a justice of the supreme court I possess all the powers of the late chancellor, and that
If the application be to one of the officers named in the statute as commissioner, the application must be to. an officer residing in the county where the person to be brought up is illegally detained. If, however, there be no such officer within the county, or if he be absent, or for any cause incapable of acting, or if such officer shall have refused to grant such writ,
Upon the return of the writ the respondent moved to supersede or quash the writ, for the reason that the special county judge of Oneida wras authorized to execute the writ, and that he was not absent from the county, and had not been applied to to issue the writ; and upon this motion it was not even suggested by counsel, nor did the idea for once occur to me, that this was to be deemed a writ issued by the court. It seems to me, therefore, that if a judge at chambers can ever be justified in acting at the same time and in the same proceeding in a double capacity, it is- quite clear that I cannot do so on the papers before me, if I felt inclined to do so. I am entirely satisfied that upon this writ I possess no other powers than such as are possessed by a supreme court commissioner under the statute, and that consequently I 'cannot, without a usurpation of authority, assume or exercise that species of jurisdiction which belongs exclusively to a court of equity. I am aware that some of the common law judges, in speaking of the discretionary power of the court upon habeas corpus in the case of infants, have 'spoken quite, loosely on this subject, but this was in cases of writs issuing out of the court where the common law powers might be exercised ; but, what is a little remarkable, in all these cases the exercise of that discretion was declined. I have examined ■ with some care all of the
Upon the determination of the proceedings above mentioned, upon the writ of habeas corpus, on the 22d day of August) 1854, the said Ann Augusta Wilcox presented to Justice Mason her petition, setting forth the proceedings had upon the said writ of habeas corpus and all the depositions taken upon said proceedings, both in behalf of the relator and the respondent, and setting forth her claim to the custody of the said infant, assigning various reasons why the custody of the said infant should be given to her for nurture and training. This petition was addressed to the supreme court in equity, and presented to the said justice at chambers, out of term; who thereupon granted an order that the said Morris Wilcox show cause before him, at his office in Hamilton, on the 31st day of August then inst;, why the prayer of the said petition should not be granted and the custody of the said child committed to the petitioner. Upon the day named for that purpose, the parties appeared before the said justice ; and the said defendant, by his counsel, made the following objections, and argued the same before the said justice
“ First. That this motion cannot be heard upon the papers served; because, 1st, the affidavit and papers were not made in this proceeding, but in a former and different proceeding, in. which they had been used, and that they belonged to such
Second. That this is not a motion that can be made and heard at chambers, but that it should be made and heard at and in a regular appointed term of this court, if at all.
Third. That this proceeding is for the enforcement of an alleged right, and should be enforced by an action commenced in the usual way under the code of procedure, or by petition at a regular term of this court.
Fourth. That the said justice has no jurisdiction to hear and determine the matter in controversy at chambers and grant the order asked for, and that the proceeding cannot be had in the county of Madison, but should be had in the county of Oneida.”
The hearing upon the said petition was by consent of parties adjourned to the 20th day of September thereafter, and the question raised as to the jurisdiction of the said justice was reserved, and in the meantime the question of jurisdiction examined ; and on the said 20th of September, before any further proceedings were had on said petition, said justice announced to the parties that he had examined the question of the jurisdiction of a justice of the supreme court to entertain such a petition at chambers, out of term, and had come to the conclusion that such jurisdiction existed in the justices of the supreme court, and that he should entertain the proceedings upon said petition. The respondents did not appear further upon said proceedings. The petitioner proved her case, and the said justice on the said 20th day of September, 1854, made an order that the care and custody of said Theresa Wilcox be committed to her mother, the petitioner, and that she be delivered over by the respondent, her guardian, to her mother, there to remain until the further order of the court. The said petition being filed and the order duly entered, and a copy thereof served on the respondent, he appealed from the whole of the said order to the general term. The case was argued in the general term and the order affirmed, and the respondent appealed to the court of appeals, where the case was argued
Mason, Justice.]