Read v. Drake

2 N.J. Eq. 78 | N.J. Super. Ct. App. Div. | 1838

The Ordinary.

Upon the above case I decide as follows :—

1. That by the twenty-seventh section of the act, entitled, “An act to ascertain the power and authority of the,ordinary and his surrogates, fo regulate the jurisdiction of the prerogative court, and to' establish an orphan’s court in the several counties of this state,” {Rev. Laxos, 784,) the appeal given to the prerogative court authorizes the ordinary to look into the merits of the decision made by the orphan’s court in granting letters of guardianship, and to affirm or set aside and change the appointment made by the orphan’s court, as the ordinary shall think the legal and just rights of the parties require.

2. That in cases of disputed claims to the right of guardianship, the depositions taken at the hearing should be reduced to writing by the surrogate, and be sent up with the papers on the appeal; and that, whether depositions are taken and sent up or not, the ordinary may, in his discretion, allow further depositions to be taken on notice, before the surrogate, to be used on the hearing of the appeal.

3. That by the twenty-eighth section of said act, the mother or next of kin are given a clear preference, and are entitled, if they desire it, to the appointment of guardian for minors under fourteen years of age, and cannot be passed by, except upon some satisfactory objection made and sustained before the court.

4. That in the present case, I see no satisfactory reason to pass by the next of kin, who on all hands is admitted to be the appellant.

5. That the decision of the orphan’s court of the county of Warren be reversed ; that the letters of guardianship granted to Amos H. Drake be set aside, and that such letters be granted to Samuel Read, the appellant, being the next of kin to the minors, Who are under fourteen years of age, upon his giving bond according to law.

The following decree was thereupon made -

This appeal coining on to be heard at a special term of the prerogative court, held at Trenton, before his excellency William Pennington, governor of the state, and ordinary in the same, on Wednesday, the sixteenth day of May, in the year of our Lord one thousand eight hundred and thirty-eight, in the presence of Theodore Freliughuysen, of counsel for the appellant,, and of Henry W. Green, of counsel for the respondent; and the matters therein having been read and considered, and after the arguments of counsel heard, the ordinary was of opinion that the said Samuel Read was the next of kin to the said minors, Sally Ann Drake and Maria Drake, and that no- sufficient reason appeared to pass by him in the choice and appointment of guardian for the said minors; It is therefore ordered, adjudged and decreed,- that the said decree of the orphan’s court of the county of Warren, appealed from in this cause, appointing the said respondent guardian of the said minors, he, and the same is hereby reversed and set aside: and it is further ordered, that letters of guardianship be granted to the said Samuel Read, appointing him the guardian of the said Sally Ann Drake and Maria Drake, and fhat said letters be issued from the prerogative office- of this court, on the terms provided by the statute in such case made. On motion of William O. Morris, proctor for the- appellant.