Lefever v. Lefever

Mason, J.,

delivered the opinion of this court.

Bitter family controversies like the one before us are greatly to be deplored, especially where infants of tender years may become the victims of the animosity and vindictiveness which .characterise them; and it would be a high and enobling funcr tion of a court of justice to be able, while it settled the legal rights of the contestants, to allay those bitter feelings and restore that harmony and affection which should always mark .the intercourse of near relations. But regarding it impossible ¡to accomplish the one, we will proceed to do that which is ¡both our duty and within our power to achieve, namely, adjust the legal rights of the parties to this record: prefacing our action, however, by the remark, that the evidence in the record affords no warrant for the criminatory language employed in both the petition and answer, and we are therefore compelled to conclude it had its origin rather in acerbity of personal feeling than in fact or in (ruth.

It is true, that upon the death of the husband his widow becomes the natural guardian of her infant children, and is recognised both by our statutory law and judicial decisions as having, in general, the rjgh.t to the control of both their persons .and property, to the exclusion of all other persons.. This is, nevertheless, a right which the widow may exercise or not in her discretion, but it is attended with the correlative obligation .or duty to qualify and give bond, as provided by the act of 1816, ch. 203. The exercise of the right, therefore, depends upon the performance of the duty, and unless the latter is discharged in a regular manner and in a reasonable time, it will work a forfeiture of the right or privilege. We .can perceive no good reason nor discover any authority for the assumption, that the mother must make a formal renunciation of her right to act as guardian for her children before another can be appointed in her stead. It is her duty, as we have said, to assert her right to the guardianship in due time and form, and if she does not, the orphans court must appoint a guardian in her place. If this were not so, the mother might hold the guardianship in abeyance for an indefinite period, to the prejudice of the infant’s rights. The case of Fridge vs. The State, *477 use of Kirk, 3 Gill & Johns., 112, fully sustains this view of the subject.

We corne then to apply these principles to the present case, it appears from the record that the mother was cited or summoned, in January 1854, to appear before the court and qualify as guardian. The summons was returnable 3rd February, and was returned, endorsed “summoned,” by the sheriff. It further appears, that the appellee was appointed on the 2nd of May following. These are record facts, about which there is no dispute, and we think they are sufficient to determine the case. Having neglected for three months to .comply with the requirements of the law or to obey the mandate 4of the court, we think the court properly assumed from these .circumstances that Mrs. Lefever had rejected or abandoned the trust, and therefore the appointment of Daniel Lefever was .proper and legal. It matters not that, the mother doubted and hesitated about accepting the trust, or that she refused formally ■to renounce it. If she did not accept it, and her acceptance W’as to be evidenced by a compliance with the law, she was to be regarded thereby as having renounced it.

The infant, it seems, was not cited to appear before the .court; and it has been contended, that the 2nd sec. of sub-ch. 12, which provides, that the court “shall have power to call or have brought before them any orphan for the purpose of appointing a guardian,” is mandatory, and that before a legal appointment of guardian can be made, the infant must be cited before the court. If this be required in one case it must be in all, for the law makes no exceptions. We can hardly suppose that, it was the purpose of the legislature to impose upon the court a duty, which, in many cases, could not be discharged, and in others, would be a mere empty form, for where the infant is out of the jurisdiction of the court, it could not be compelled to appear, or where it is still in the nurse’s arms what good could result from its personal presence? We rather suppose the law contemplated cases where it would become important and proper to consult the infant as to the appointment of its guardian, and where it might be supposed it bad been purposely kept out of the presence of the court. In such *478 a case the infant’s appearance might be compelled under this section. We have no hesitation, however, in adding, that in all cases where the infant has attained a sufficient discretion, and is within the reach of the process of the court, it would be proper and becoming for the court to consult its wishes in appointing its guardian, and where those wishes can be gratified without prejudice to the infant’s interests, they should be.

We do not deem it necessary to express any opinion upon the other testimony in the cause further than to remark, that if it were properly before us, it would be wholly insufficient to invalidate the appointment, of the appellee, which, being the act of the court of competent jurisdiction, ought to be supported by every legal intendment.

It will be quite proper for us here to remark, (hat if, in the future, any of those feelings which have been attributed to Mr. Lefever should so far manifest themselves in his conduct towards his ward as to result in ill treatment, neglect of duty, or should prevent or interrupt that intimate and affectionate intercourse which should always subsist between parent and child, the remedy is to be found in the act of 1798, ch. 101, sub-ch. 15, sec. 12, by which the court is empowered to revoke the appointment and make a new one.

We do not wish to be understood as affirming, that the present appeal presents the question of the regularity and propriety of the appointment of the appellee by the order of the 2nd of May. If parties could open decrees and judgments, on appeal, in this indirect way, it would virtually amount to a repeal of the laws limiting the time within which appeals should be taken, and would lead to interminable litigation. If the appellant wished to contest, in (his court, the appointment of the appellee, she should have appealed directly from the order appointing him. The precise and only point properly presented on the present appeal, is, the propriety of the court’s action, not in appointing Mr. Lefever, but in refusing to remove him. Surely, there was no cause shown why this should be done, assuming, as we are bound to do, that the first appointment, coming before us thus incidentally, was legally and properly made. In all cases where the decree or judg *479 meut of a court of competent jurisdiction is brought thus incidentally under review, we are to assume, in the language of this court,, in the case of Fridge vs. The State, “that what was done was rightly done.”

Decree affirmed with costs.

In addition to what I have said, as the organ of the court, I will remark in my opinion, that hereafter, if, in the judgment of the orphans court, the interests and happiness of the infant and parent could be promoted by the revocation of the appointment of the present guardian, with the view of the appointment of the mother, they would not only have the power to make the change, but that it would be eminently proper and becoming for them to exercise it. Such a step would be but restoring the child to the protection of her, whom nature has designed should be its guardian and friend — its mother. This power, however, should rest in the sound discretion of the court, and should only be exercised with extreme caution and prudence.