Munday v. Baldwin

79 Ky. 121, 1880 Ky. LEXIS 100

• Court: Court of Appeals of Kentucky
• Decided: November 20, 1880
• Status: Published

Opinion

•CHIEF JUSTICE COFER

delivered tiie opinion op the court.

Thomas H. Munday died in 1863, domiciled in Mercer-■county, in this State. At the time of his death he was a widower, having one child, then only a few months old. By his last will and testament, he gave all his personal estate .and the care and custody of his infant child to his maiden .sister, Sarah E. Munday.

Miss Munday and her mother seem to have resided together, and the child remained with them up to Miss Mun-■day’s death, and for some time afterward remained with the ¡grandmother.

In the meantime the appellee, a maternal uncle, was, by the Mercer county court, appointed guardian of the child, and took possession of and rented a small tract of land she inherited from her mother.

In 1875 the wife of the appellant, a paternal aunt of the child, and who resided with her husband in the State of Texas, came to Kentucky, and when she returned the child and its grandmother went with her to that State. In 1876, the child, having reached the age of fourteen, went into the county court of Dallas county, Texas, and chose the appellant as guardian of her person and estate, and he qualified and gave bond as such.

Shortly thereafter he brought this suit in the Mercer court of common pleas against the appellee to recover the sum of more than four thousand dollars in his hands, the proceeds of the rent of the ward’s land.

The appellee defended on the ground that the ward had been removed from the State without his consent, and that her domicile is here, and the courts of Texas had no jurisdiction to appoint the appellant guardian of either her person or estate.

The record fails to show that the appellee consented to her removal from this State, and the only question we deem it necessary to decide is, whether the facts we have stated show a change of domicile and consequent jurisdiction in the courts of Texas to appoint a guardian of the ward’s person or estate, who is authorized under our statute to demand from a guardian appointed in this state such money or personal property of the ward as may be in his hands.

Sections 16 and 17, article 2, chapter 48, General Statutes, provide in substance, that when there is in this State a guardian of a non-resident minor, the guardian of such minor, appointed and qualified according to the law of the-place where the minor resides, may, by petition to the-county or circuit court of the county having jurisdiction to-appoint a guardian in this state, have an order compelling-the guardian here to pay-over to such foreign guardian the-personal estate of the minor, and the rents and profits of his real estate.

This statute only applies to a foreign guardian whose ward, is a non-resident of this State.

The appellant is not such a guardian. If he be legally a guardian at all, he is not the guardian of a non-resident minor. The domicile of the father is the domicile of his minor ehild, and this ward, therefore, once had a domicile in this State. She is yet a minor, and consequently never has been capable of changing her domicile by any act or intention of her own. (Schouler’s Domestic Relations, 312 and 412; Forbes v. Forbes, 3 Am. Law Reg., O. S., 255.)

Her guardian has never given his consent that she might change her domicile, and hence we need intimate no opinion, as to the effect which his consent, if given, might have had.

Nor need we enter into any discussion of the motives-that may be actuating either guardian. The conduct of each is compatible with perfect good faith, and a desire to. promote the best interests of the ward, and each has done-toward securing her interest and promoting her welfare that which entitles him to her respect and confidence.

Judgment affirmed.