In re the Guardianship of the Person & Estate of Van Vranken

Majority

p. 387

In the Matter of the Guardianship of the Person and Estate of Alberta Van Vranken, a Minor Under the Age of Fourteen Years.

(Supreme Court, General Term, Third Department,

Filed December 31, 1888.)

Headnote

1. Surrogate’s court—Practice—Petition for appointment of guardian OF INFANT UNDER FOURTEEN—CODE ClV. PRO., §§ 3822, 2823.

The petition for an appointment of a guardian of an infant under the •age of fourteen, may be made by a relative, but must state the facts, and must contain the things required in the petition under Code Civil Procedure, § 2823. Among those facts are the relationship of the petitioner to the infant, whether the father and mother of the infant are living the circumstances, if any, which render an appointment of another person expedient, and whether there has been a general guardian appointed. The petition must pray that the father or mother be cited.

3. Same—What is not sufficient reason for appointing a person other THAN PARENTS THE GUARDIAN.

It is not sufficient reason for taking a child from parental custody, that it appears to the satisfaction of the court, that the infant will be well taken care of by the person appointed. The guardianship of the infant child will not be taken from the father, unless there be unfitness on his part, or some other very strong reason.

3. Same—Code Civil Procedure, section 2573.

Code Civil Procedure, section 2573, does not require that notice of the application for an appointment of a guardian be given to the infant if under the age of fourteen years, and he is legally represented by the petitioner for such appointment within said section, but it is necessary that notice be given to his nearest of kin.

Appeal from an order of the surrogate’s court of Schectady county, appointing one Anna B. Barhydt, guardian of an infant. Catharine Van Vechten died m 1886, m the city of Schenectady, leaving her surviving her husband, Albert C. Van Vranken, and two children, to wit, Bosenettie and Alberta, aged respectively, four and two years.

Alexander J. Thompson, for app’lt; S. W Jackson, for resp’t.

This is an appeal taken by Albert 0. Van Vranken, father of the infant, from two orders of the surrogate appointing Anna R. Barhydt, guardian of said infant. The first order appointed her on her filing a bond; the second recited the filing of the bond and appointed her absolutely

The only papers which appear on this appeal are the petition of Anna Barhydt, dated the day the first order was made, and a petition of this appellant, dated the same day, asking the appointment of Antonnette Van Vranken, as such guardian, which petition is recited in the first order, and practically denied.

The respondent here, Mrs. Barhydt, first urges that the appeal should be dismissed, because the infant has not been made a party, citing section 2573, Code Civil Procedure and Kellinger v. Roe, 7 Paige, 362.

The appellant asks that this court take proof of the facts and appoint a referee for that purpose, under section 2586.

The proceedings taken in this case appear to be somewhat irregular, The petition in case of an infant under fourteen, may be by a relative. Section 2827.

The petition must state the facts, and the contents must be like those of petitions under section 2823- Among those facts are the relationship of the petitioner to the infant,, whether the father and mother of the infant are living. The circumstances, if any, which render the appointment of another person expedient,' whether there has been a general guardian appointed. Sec. 2822.

None of these facts are.set forth on the petition Mrs. Barhydt is a mere stranger. The petition must pray that the father or mother be cited. That was not done. The citation must be served ten days before the return. Perhaps the recital of the father’s appearance might be a waiver of this; but he was really in court only to present his own petition. He could not be forced into a hearing of the other. The affidavits presented to us, on which we are asked to take further proof by a reference, assert .that the appellant did not appear at the hearing of the petition of Anna R. Barhydt. And the appellant, the father of the infant, insists on his right to be heard on the appointment.

The order says that it appears to the satisfaction o.f the court that the infant will be well taken care of by Anna R. Barhydt. That is not a sufficient reason for taking child from parental custody. Else every child might be taken from its home because some one other than the par. ents, would take good care of it.

It is a very serious act to take from a father the guardianship of his infant child. It should not be done unless there be unfitness on his part, or some other very strong-

p. 389

reason. In this case, there appears no evidence showing any grounds for taking away the father’s rights. In fact, it would seem that no proof was taken by the surrogate, or inquiry into the circumstances. Section 2825. The order refers to nothing but the 1 ‘ allegations ” of the parties. We ought not to consider the interest and welfare of the infant as the most important matter in the case. If, as seems to be held in the case cited, she would be a party, she could be brought in under section 2573; and the appeal would not be dismissed. But in Underhill v. Dennis (9 Paige, 202, at page 210), the chancellor said that, on an appeal from an order appointing a guardian, there was no absolute necessity for making the infant a party. Kellinger v. Roe, was an appeal from an order denying the appointment. See also in this connection, the last sentence of section 2573. As the statute does not require notice of the application to be given to the infant under fourteen he is probably ‘ ‘ legally represented ” by the petitioner, within this section. Underhill v. Dennis (supra), also holds that the neglect of the surrogate to give notice to the nearest of kin, is sufficient ground for reversal.

It seems to us that this matter cannot be satisfactorily heard upon a reference. On the whole, we think that for the defects in the petition, and for the failure to cite the father, we should, in the interest of the infant, reverse the orders; without any prejudice to a renewal of the application by any proper party, and without costs to any one.

Ingalls, J., concurs.