Eldridge v. Lippincott

1 N.J.L. 455

• Court: Supreme Court of New Jersey
• Decided: November 15, 1795
• Status: Published

Opinion

The opinion of the court was delivered on the following day, after advisement, by—

Kinsey, C. J.

The law was accurately stated by Mr. Leake. Both before and since the act of assembly, the mother, in cases of this kind, after the death of the father, has been considered as entitled to the guardianship and custody of her children, unless there existed some strong reasons which rendered her appointment improper. The Orphans’ Court must exercise a discretion under the guidance of those principles which governed in like cases before the act. Before the act the mother might, for good cause, be set aside, and the guardianship committed to another. It does not appear on this report upon what fact of disqualification they decided against the mothers application. It appears to have been on the application of twelve relatives in favor of Lippincott. If the inferior court had assigned a reason which appeared to us insufficient, we should, without difficulty, reverse their decree.

They have not done this, and we cannot presume, in the absence of all proof of the fact, that they have acted without adequate reasons,

(a) It is incumbent on a party impeaching the decree of a court to show that it proceeded against law and right; this will never be presumed. We are, therefore, unanimously of opinion that the decree be affirmed.

Decree affirmed.

Cited in State v. Mahew, 4 Hal. 70; Tenbrook v. McColm, 5 Hal. 333; State v. Hanford, 6 Hal. 71; Morris v. Morris, 1 Harr. 530; Albert v. Perry, 1 McCar. 540.

Upon the same principle the court decided in Kidder v. Townsend, 3 Johns. 435, that where the evidence given at the trial of a cause before a justice is set forth in the return to a certiorari, the court will decide whether it was sufficient to support the plaintiff’s declaration, and if they consider it insufficient the judgment below will be reversed; but if the evidence is not stated in the return, the court will presume that it was sufficient to support the declaration.