Ex parte Huffman

167 F. 422, 1909 U.S. App. LEXIS 5353

• Court: U.S. Circuit Court for the District of Western Texas
• Decided: February 10, 1909
• Docket: No. 476
• Status: Published

Opinion

MAXEY, District Judge

(after stating the facts as above). The judgment rendered in the court at El Paso in favor of the minor, Ethel Copley, directed the money to be paid out by the clerk to her legal and qualified g'uardian. The amount of the judgment not being in excess of $500, the court might have directed an order to be entered, pursuant to the provisions of Rev. St. Tex. 1895, art. 34-98w, authorizing the next friend of the minor or other person to take charge of the money, upon giving bond in any sum not less than double the value of the property; but the judgment as actually entered directed its payment to the legal and qualified guardian of the minor. Tn some jurisdictions it has been held that, without express statutory authority, a court of chancery has power to order the payment of the ward’s assets to a foreign -guardian, when in its judgment such action is deemed best for the interest of 'the ward. Earl v. Dresser, 30 Ind. 11, 95 Am. Dec. 660, and note at page 666; Woerner, Am. Daw Guardianship, 87; 13 Am. & Eng. Enc. Law (2d Ed.) 968, 969. But it is said to he generally requisite that, where an infant domiciled in one state has property in another, a guardian be appointed for such property in the state where it is situated. In the exercise of comity, however, preference will ordinarily be given to the person already clothed with the authority of guardian in the state of the infant’s domicile. 13 Am. & Eng. Enc. Daw (2d Ed.) 968, c.1. 3.

Since courts should act with extreme circumspection iu dealing with the estates of infants and others under guardianship, it is thought to be the better and safer practice, where nonresident guardians seek to obtain possession of moneys in the registry of the court, to require as a prerequisite to the payment of such moneys the production of ancillary letters, issued by a local court where the property is situated. In Texas such letters may be obtained expeditiously and with little expense. The statute upon the subject provides as follows:

“Where a guardian and his ward are nonresidents, such guardian may file in Hie county court of any county a full and complete transcript from the records of a court of competent jurisdiction where he and his ward reside, showing that he has been 'appointed and has qualified as guardian of the estate of such ward, which said transcript shall be certified by the clerk of the court in which the proceedings were had, under the seal of such court, if there be one, together with a certificate from the judge, chief justice or presiding magistrate of such court, as the case may be, that the attestation to such transcript is in due form; and upon the filing of such Transcript the same may be recorded, and the guardian shall be entitled to receive letters of guardianship of (he estate of such minor situated in this state, upon filing a bond with sureties, as in other cases, in double the amount of the estimated value of such estate.” Rev. St. 1895, art. 2753.

See, also, Simkins, Administration of Estates, pp. 484, 611.

Article 2754 provides for the recovery of the property of the nonresident ward and for its removal out of the state; and by article 2755 it is provided that:

“Any resident executor, administrator or guardian having any of ihe pstnle of such ward, may be ordered by the court to deliver the same to such nonresident guardian.”

It is thus seen that 'the laws of this state provide an easy, expeditious, and inexpensive method whereby a nonresident guardian may obtain possession of the ward’s estate situated in Texas. In addition, the interest of the ward is thoroughly protected by requiring a bond to be given in double the amount of the value of the assets sought to be recovered. As before stated, the judgment rendered in favor of the minor, Ethel Copley, authorized the clerk to pay over the money to her legal and duly authorized guardian. Such a guardian, as applied to the facts of this particular case, is one appointed, or to be appointed, by the county court of El Paso county; and when a guardian so appointed applies for the $500 in the registry of the court, the clerk will then be clothed with authority to pay it over.

The application in its present form will be denied, with liberty to Mrs. Huffman to present an application at some future time in conformity with the views above expressed.