| Mich. | Apr 25, 1866
This is a motion to dismiss a writ of error, on two grounds: first, because Taff omitted to join in a former writ which was dismissed; and. second, because he is not entitled to consider himself aggrieved by the judgment below.
The case in the Court below was an appeal from the allowance by the Probate Court of Wayne County of the last will of Cyrus W. Jackson, whereby he left all his property, with some small exceptions, to his son Samuel W. Jackson, an infant -of tender years, and appointed Bissell and Hosmer guardians and executors. The appeal was brought by Taff as grandfather of the child, who was an only child. The decree of the Probate 'Court was affirmed at the Circuit, and a writ of error
The affidavits presented, certainly have some tendency to show that in all these proceedings Taff has been the moving party, and we cannot help thinking that such is the fact. But if he had any grievance which he had a right to complain of in his own name, we cannot hold that he was obliged to join in an irregular writ with some one who could not lawfully sue it out. Had the former writ been regular, and had judgment been rendered upon it, no doubt he would have been barred. But its dismissal for irregularity could not prevent Taff from, suing out a new writ, and while the proceedings are of very doubtful propriety, we cannot say that misconduct has been made out so plainly as to justify us in refusing him a hearing if he has any legal standing in court.
We are, therefore, compelled to consider whether Mr. Taff has the right to consider himself aggrieved by the judgment below.
It appears that, instead of moving to dismiss his appeal in the Circuit Court, the proponents of the will joined issue with him on the merits, and the judgment affirming the will is also in form a personal judgment against him for costs. This liability is clearly a personal grievance of his own, upon which error may be brought, and the writ, therefore, is not irregular. But if he has no further interest in the judgment below, this would give him no right to dispute the will itself, and no error appears to be assigned on this point. We are therefore called upon to examine the more serious question, whether he was legally interested in the main controversy.
The disposition of Mr. Jackson’s estate and the appointment of guardians, are both contained in the same will, there being
It is claimed, however, that Taff has a legal right to be heard upon any question involving the guardianship of his grandchild, and that on this account he may oppose the will, because the question of guardianship cannot be severed from the rest of that instrument.
Our statutes give to the father, and where there is no father to the mother, (where capable of acting,) control of the infant’s person.- — -2 C. L. §§ 3303-4. In all other cases the guardian appointed by the Judge of Probate controls both person and property. And where an infant is under fourteen years of age, the Judge, (except in the cases mentioned,) is not compelled to select the guardian from any particular class of persons.— §3300. We do not find in the statute any right secured to „any relatives but the father and mother, to retain control of the infant by any species of guardianship, and as the statute covers the entire subject, we must find Ms right, if it exists, in some form distinct from any absolute claim to appointment.
The question, then, arises, whether his relationship entitles him to be heard in any proceedings to obtain guardianship. If he could appear as a matter of right, upon any application for that purpose, we think it must follow that he could appear to contest the validity of a will appointing guardians. If he could not interfere of right in the one case, he is upon the same grounds a stranger to the other. Although, if the will is duly executed, no one can complain of the father’s choice, yet we think it competent for such persons as are legally concerned, to dispute the fact of any such choice having been made.
The statute throws no light upon this question. .It simply declares that “ The Judge of Probate in each county, when it shall appear to him necessary or convenient, may appoint guardians to minors and others,” <fcc.; § 3299; and that “ if the minor is under the age of fourteen years, the Judge of Probate may nominate and appoint his guardian.” § 3300. If we were to assume that this language was designed to exhaust the subject, we should be compelled to find that the law had placed infants under the age of fourteen in a complete state of isolation from all the ties of blood, and all the associations which we are apt to consider as natural bonds of union. It does not seem probable that any civilized legislation would deliberately cut him loose from his relatives altogether, and leave him entirely at the mercy of strangers. There can be no doubt that the Judge of Probate is the ultimate arbiter in the selection, but if no one else has any right to intervene to aid him in making a good and rejecting a bad choice, the condition of a helpless child would be most deplorable. And yet, if there is no law on the subject, it cannot be helped by any regrets.
We do not think the matter has been left in such an anomalous condition. Although Probate Courts are new institutions unknown to the ancient law, and although the appointment of guardians is in this State vested in those courts, yet the jurisdiction is not in itself a new one, and must be considered as having been transferred with such of its incidents as can be properly exercised in the new tribunal. The power of appointing guardians is one which was formerly vested in the Court of Chancery. Authorities have not agreed upon its origin as a prerogative or a judicial airthority, but it has long-been settled that, so far as infants are concerned, (although perhaps otherwise as to lunatics,) the jurisdiction is one belonging to the Court, and not a personal one in'the chancel
It appears that the general practice, where a guardian was applied for, was to refer it to a master to report the circumstances, &e., of the infant, “ and what relations he has “ and that dll proper parties have notice to attend the said master thereon, and be at liberty to propose such guardian or gtiardicms.” — Seton on Decrees, 211; 1 Turner's Pr. pp. 257—8. The term Belations is said to mean, those who would if he died intestate, be entitled to a distributive share of the infant’s estate.—Hoffman's Master in Chancery, 131; Wright v. Atkyns, 1 Turner & Russ. 143; 4 Kent Com. 537, note a. The common law rule concerning guardianship in socage which •would not allow an heir-at-law to be guardian, has been repudiated by the Court of Chancery as leading to cruel and unnatural results, and is deservedly condemned by Chancellor Kent, who shows how under our American system of descents the mischief of it would be greater even than in England, where heirship is in general confined to a single person. — 2 Kent's Com. 223. And the rule never excluded those entitled under the statute of distribution.—Ex parte Ludlow, 2 P. Wms. 638. See also upon the general doctrine, Livingston's Case, 1 Johns. Ch. 436 ; Dormer's case, 2 P. Wms. 262; Morehouse v. Cooke, Hopk. Ch. 226.
The practice of excepting to the report in these cases has not prevailed, but it is stated by Mr. Daniell that any person interested may present a petition to have the report referred back. — Dan. Ch. Pr. 2081. No cases have¡ come under our
It is apparent that if there are not some persons besides the infant who have an absolute right to present their views concerning the guardianship, his interests will often be at the mercy of persons by no means calculated to protect him. And when the settled practice requires certain persons to be at liberty to appear before the master, and requires him to ascertain and report who are the infant’s relations, it must be for some useful purpose,’ and not to preclude them from intervening. Mr. Hoffman evidently understood the English practice as providing for such intervention, and he expresses regret that the New York rules had not expressly required the same precautions adopted in England. — Hoffman's Master in Ch. 131, 132.
The case of Morehouse v. Cooke, Hopk. Ch. 226, is the only case we have been able to discover, in which a statute like ours, so far as the original right of appointment is concerned, has received construction. In that case a guardian had been appointed on an ex parte hearing, without notice to the relations. One of these relatives, who had not appeared before the surrogate, appealed to the Court of Chancery. The chancellor sustained the appeal, censured the surrogate severely for not giving notice, and although the proceedings
The attention of the Legislature being thus called to the subject, there are now express enactments on the subject in New York, requiring notice to be given, but only to such relatives as the surrogate may direct. This notice was by the Revised Statutes required to be given to all relatives by blood or affinity in the county.- — ■ Underhill v. Dennis, 9 Paige, 206. Such a notice included of course many persons who had no interest as possible distributees, and the amendatory law, while it left the matter somewhat in the surrogate’s discretion, did not confine the notice even to blood relations. The object of such a notice, including so large a range of persons, was mainly to enable him to obtain information concerning the qualifications of candidates and the position of the infant; and it was accordingly held in Kellinger v. Roe, 7 Paige, 362, that such persons resisting an appointment, but not acting as petitioners, were not parties to the appeal, of the unsuccessful applicant whom they had opposed. But in Underhill v. Dennis, 9 Paige, 202, where a person who was not a relative, but with whom the infant had been left by his mother, applied verbally to a surrogate and was refused guardianship, and appealed from a subsequent appointment of a guardian made on a written petition ex parte and without notice, the chancellor entertained the appeal, and reversed the decree as irregular, upon the express ground that notice should have been given to the relatives.
We are entirely satisfied that the next of kin may, if they see fit, make themselves parties to guardianship proceedings, and that when they do so, they may appeal from an adverse decision. And we are therefore of opinion that they may be proper parties to oppose the probate of a testamentary provision appointing guardians. This, of course, gives them no right to oppose it on any ground except that it is not a valid will, as a father’s testamentaiy power cannot be reviewed.
The motion must be denied, but under the circumstances we do not deem the plaintiff entitled to costs. We shall be prepared to hear the case in its order on the merits.