In re Daniels — 53 N.Y. St. Rep. 859

Majority

p. 859

In the Matter of the Application of Sophia A. Daniels for the appointment of a temporary guardian of Jennie R. Willett, an infant under fourteen years of age.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Guardians—Residence of infant.

The infant resided continuously with her parents in Connecticut until shortly before the death of her father (her mother having previously died), when she went by his direction to a maternal uncle in that state, with whom she lived until the probate court rejected her father’s will making said uncle her guardian, whereupon the uncle sent her to the petitioner, her maternal grandmother, in Brooklyn. Held, that this was merely a change of locality of the infant, made by one who had no right, under the circumstances, to make it, and that such change did not make the infant a resident of Kings count} within the meaning of § 2827 of the Code.

Appeal from order of the surrogate of Kings county, appointing respondent temporary guardian of the person of Jennie R. Willett, an infant nine years of age.

Michael H. Cardozo and Edgar J. Nathan, for Martha S. and E. S. Willett, app’lts; William H. Arnoux, for petitioner, resp’t.

This is an appeal from an order of the surrogate of Kings county, appointing the petitioner, Sophia A. Daniels, temporary guardian of the person of Jennie R. Willett, an infant, until said infant attains the age of fourteen years. The guardian so appointed is the maternal grandmother of the infant, and resides

p. 860

in the city of Brooklyn. George W. Willett, the paternal grandfather of said infant, who resides in the city of New York, also made petition for the appointment of Mrs. Daniels as guardian. Martha S. Willett, the paternal grandmother, and Edward S. Willett, the paternal uncle of said infant, who reside in the city of Bridgeport, Connecticut, opposed the appointment of a guardian of said infant. Both the father and mother of the infant were residents of Connecticut. The mother died on December 6, 1889 ; the father died on July 9, 1892. After the death of the mother the infant lived with her paternal grandmother, in Bridgeport, until May 24, 1892, when, by her father’s direction, she went to her maternal uncle, Mr. Sandford, in Bridgeport, and lived in his family until September, 22, 1892, when he caused her to be taken to Mrs. Daniels, in Brooklyn.

On September 22, 1892, the probate court at Bridgeport' rejected the probate of the will of the infant’s father, made April 14, 1892, on the ground that he was not of sound and disposing: mind when he executed it. By that will Mr. Sandford was appointed sole guardián of the person and property of the infant. On September 26, 1892, Mrs. Daniels made her application in this matter. The infant had no property in the county of Kings, or indeed in this state; all her property was in Connecticut. Until sent here by her uncle she had resided in Connecticut. She was living in the family of her uncle, and the father, by his will, had attempted to appoint him her guardian, but the probate court in Connecticut rejected the will, and the uncle had no power or right thereafter, except to deliver her to some person legally authorized to receive her. No person at that time was authorized to receive her. No guardian of her person bad been appointed, and it was, therefore, his duty to retain and care for the child until some court, having jurisdiction, should ■ make an order with respect to her. Instead of doing that, as soon, as the will appointing him guardian was rejected, he at once sent the child outside the jurisdiction of the courts of Connecticut, to her maternal grandmother in Brooklyn, although equally near relatives were then living‘in Bridgeport. His object in doing so is apparent. He did not wish the courts of Connecticut to appoint a guardian of the person of this infant, who had always resided and all of whose property was in Connecticut It seems to us that this was merely a change of locality of the infant, made by one who did not, under the circumstances, have the right to do even that; and that such change did not make the infant a resident of Kings county within the meaning of § 2827 of the Code. The infant’s residence was in Connecticut, fixed there by act of her parent, and could not be changed in contemplation of law except by a guardian.

The order appealed from should be reversed, and the proceedings dismissed, with costs.

Barnard, P. J., and Dyicman, J., concur.