Weisne's Appeal from Probate, 39 Conn. 537

Weisne's Appeal from Probate

39 Conn. 537 | Conn. | 1873

SeymouR, J.

The appellant, Mrs. Weisne, is the mother of Anna Eilbert, a minor of six or seven years of age. The aj>pellee, Christian Birk, was appointed by the court of probate guardian of the minor, upon an application made to the probate court alleging in substance that the mother had aban-' domed her child, and that she and her husband had become and were unfit persons to have the care and custody of the minor.

The Superior Court upon appeal found that these allegations were untrue and that neither the mother nor her husband was an unfit or improper person for such charge, and therefore reversed the decree of the probate court-.

The appellee complains of the proceedings in the Superior Court; first, because he says that the appointment of Mr. Birk as guardian was within the discretionary power of the court of probate and therefore not the subject of appeal.

. The contrary is so fully established in the practice of the state, and the statute so clearly gives an appeal from every order, denial pr decree of the probate court, that we forbear to do more than reaffirm the rule- allowing an appeal in such cases.

*539The appellee further complains that in the trial before the Superior Court he offered evidence that, at the time of trial in that court, the physical condition of the said Anna was such as to make it improper and imprudent to remove her from the custody of the appellee; which evidence was rejected. The court was settling the right to the permanent custody, and control of the minor, and the -mother was found to be a proper person to exercise that control.. She might therefore, we think, properly be entrusted with the question whether immediate removal of the person of the child was or was -not prudent. The removal of the guardianship from the appellee did not necessarily or naturally involve any personal change of residence prejudicial to the child’s health. If the child was too ill to be removed the mother would not make the removal. She, and not the Superior Court, was the proper tribunal to say what the health of the minor required to be done.

No new-trial is advised, and there is no error in the .judgment complained of.

In this opinion the other judges concurred.