In re McNeill

38 Misc. 2d 170, 236 N.Y.S.2d 718, 1962 N.Y. Misc. LEXIS 2073

• Court: New York Surrogate's Court
• Decided: December 26, 1962
• Status: Published

Opinion

Maximilian Moss, S.

The grandmother of infants petitions the court for her appointment as guardian of their person and property. The infants’ father died a resident of Kings County in September, 1961; their mother died a resident of Suffolk County in June, 1962. The question of the jurisdiction of the court is presented. Section 174 of the Surrogate’s Court Act provides that a Surrogate’s Court has jurisdiction where infants are residents of the county of such court or have sojourned there for at least one year. Inasmuch as the infants were residents of Suffolk County at the time of the death of their mother, they have not sojourned in Kings County for one year. The domicile of the surviving parent determines the domicile of infants until it is lawfully changed. The court must, therefore, determine whether the grandparent, who is the petitioner, has the right to change the domicile of the infants to Kings County. The petition recites that the children live with the grandparent in Kings County and that the infants are resident here.

A grandparent is the natural guardian of orphaned grandchildren. Occupying the position of their next of kin and having their custody and control, petitioner as their natural guardian may change the domicile of her grandchildren to her own domicile so long as she acts in good faith (Matter of Kiernan, 38 Misc. 394; Matter of First Trust Co. v. Goodrich, 3 N Y 2d 410; Seiter v. Straub, 1 Dem. 264; Lamar v. Micou, 112 U. S. 452; Ann., 32 A. L. R 2d 869). The court, therefore, determines that the grandmother petitioner has lawfully changed the domicile of the infants from Suffolk County to Kings County. Accordingly, the petition is granted.