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In re Annan

26 N.Y.S. 258 Court N.Y. Gen. Term Decision date 1893-12-01 English

Delivered by BARNARD, P. J.

Contents

Majority

p. 258
(74 Hun, 19.)
In re ANNAN.
(Supreme Court, General Term, Second Department.
December 1, 1893.)

Headnote

Guardian—Who Entitled to Appointment.
A father left his daughter, whose mother died when the child was 10 months old, in the care of its maternal aunt until his death, 18 months afterwards. His last wish was that such aunt should be the child’s guardian. She was a proper person for guardian, and lived with the paternal grandfather, a man of means, with a strong affection for the child. Held, that it was error to appoint such aunt and the maternal grandmother guardians of the person of such child, and order that each guardian have its custody every alternate six months, and that such aunt should be appointed sole guardian.
Appeal from surrogate’s court, Kings county.
Two separate petitions for the appointment of a guardian of Dorothy Annan, an infant. From an order appointing, as such guardians, May Earle, the maternal grandmother, and Charlotte S. Richardson, the maternal aunt, of such infant, and directing that each guardian have the custody of the ward every alternate six months, Charlotte S. Richardson appeals.
Reversed.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Johnson & Lamb, (A. E. Lamb, of counsel,) for appellant.
John Oakey, (William D. Veeder, of counsel,) for respondent.

Dorothy Annan was born September 8, 1890. The surrogate appointed a maternal aunt and a maternal grandmother guardians of the person of the infant. The order provides that each guardian have the custody of the infant every alternate six months, and it is only this proviso of the order which is presented to this court by the appeal. All admit that the maternal aunt is a proper person to be guardian. She lives with the paternal grandfather of the infant, Mr. Annan, a man of large means, and she has had charge of the infant since the infant’s mother died, in July, 1891. The infant’s father died in January, 1893. The child was left in the charge of Mrs. Richardson during the interval between the death of the mother and his own death.

The rule which governs the appointment of guardian is solely the best interests of the infant. Code, § 2821; Bennett v. Byrne, 2 Barb. Ch. 216 ; People v. Walts, 122 N. Y. 238 , 25 N. E. 266 . Under these authorities, it does not seem that the joint guardianship, as ordered, should prevail. The child is very young, and needs extremely careful attention to its health. This involves unity of

p. 259
treatment, and a careful respect for the feelings of a baby of such tender years. A change of place, of treatment, of nurses, of surroundings, every six months, should be avoided. The interests of the infant are entirely in favor of the guardianship of Mrs. Richardson, viewing the case solely with reference to the physical wants of the infant. The last wish of the child’s father was in favor of Mrs. Richardson bringing up the child as guardian. The pecuniary interests of the infant are entirely in favor of the child being brought up in the family of Edward Annan. He had a strong affection for his son, the child’s father, and is willing to bring the child up, socially, far better than the estate of the child, which is small, wül do. The child will be better cared for by Mrs. Richardson, and will be brought up by his grandfather, Annan, with a full appreciation of his expectation for her. The part of the surrogate’s decree appealed from should be reversed, with costs and disbursements out of the estate.

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