In re Rice

Campbell, J.

A habeas corpus Tjas issued in this case on behalf of a Pennsylvania guardian to obtain possession of the infant over whom a guardian had been appointed by the probate court of Jackson county before any appointment was made in Pennsylvania.

The parents of the child, having formerly lived in Philadelphia, determined to change their residence and left that city with their son to go to Kansas to reside. They were both killed and the child injured by a railroad collision at Jackson last October. The boy, who is but three years old, was cared for at that city until an aunt, Mary C. Rogers, his mother’s sister, came on and has since taken care of him, and was in December last appointed guardian. Afterwards an uncle in Philadelphia applied to the Orphan’s Court, and a corporation, which is apparently created for trust purposes, was made guardian of the estate, and an aunt, his father’s sister, Mrs. Ellen Taney, appointed guardian of the person.

Our laws usually contemplate the appointment of a guardian who has custody of the estate, whoever may have the custody of the person, and provide for no corporation guardianships.

All of the infant’s property is .now in Michigan, and his chief interest is supposed to be such compensation as may be obtained for his own injuries and the death of his parents.

Our laws contemplate that guardians may be appointed for infants, whatever may be their residence, who have property in this State, and do not recognize any absolute right in foreign guardians to be recognized. Whatever respect is paid .them springs from comity and not from law, and is therefore not a matter of right.

If an infant, after having a guardian appointed at his *531 domicile, where he has been in that guardian’s personal custody, should be taken or found elsewhere, great respect should be paid to the claims of such guardian, which would probably in most cases be considered as paramount.

But where, on the other hand, the foreign appointment secures no control over the- infant’s estate, and has been created in a jurisdiction from which he was personally absent, the case is materially different.

It may or may not be that Philadelphia is to be regarded in law as technically the domicile of the parents and infant, inasmuch as they were still on the road to another, and had not reached it. Upon this we express no opinion, and assume that it may be. But for purposes of comity, the domicile is chiefly respected because it is in fact the home; and where there has been a departure with no design of returning, the legal character of the old domicile does not make it so controlling in matters of policy as it would be under other circumstances, although for other-matters it may possibly control.

In' the present case there can be no doubt that the Jackson probate court had power to appoint the guardian, and the infant’s interests are also chiefly here, which made it a very proper thing to make some appointment here, whatever might be done elsewhere. The Michigan guardian is as near a relative as any other living relative, and the Pennsylvania guardian has not as full powers. There is nothing in the case which indicates that the latter should be preferred, and we do not feel that there is any duty imposed upon us, under the circumstances, of changing the custody.

The other Justices concurred.