Sudler v. Sudler

⁴⁸ Boyd, C. J., delivered the opinion of the Court. The question in this case is whether the Orphans’ Court of Queen Anne’s County had jurisdiction to appoint a guardian of Laura L. Beatty. It was decided as early as Compton v. Compton, 2 Gill, 241 , that no appeal will lie from an order of the Orphans’ Court appointing a guardian when it has jurisdiction to make the appointment, and Judge Magbudei* said: “The Orphans’ Court, in the discharge of this duty, may make an injudicious choice; hut it is not probable that this Court, without any information to assist them, could exercise such a power more judiciously.” Whether or not the Court had-jurisdiction to appoint a guardian was dependent upon where the infant resided. Section 144 ol Article 93 of the Code of 1912 provides that whenever a male under the age of 21 years or a female under the age of 18 years acquires or is entitled to property as therein described, “and the said male or female shall not have a guardian appointed by last will and testament, agreeably to law, the Orphans’ Court of the county in which such infant shall reside shall have power to appoint a guardian to such infant until the age of twenty-one years, if a male, and until the age of eighteen, if a female, or married,” etc. On December 10th 1912, the appellee made application to the Orphans’ Court of Queen Anne’s County to be appointed-guardian of Laura L. Beatty.

Arthur E. Sudler, one of the appellants, objected to the appointment and asked for further time. The Court fixed December 18th, 1912, as the time for the determination of the matter, at which time the appellants filed their petition and protest against the appointment of the appellee on the ground that the Court had no jurisdiction to make it. They asked leave to offer testimony in support of the allegations of their petition and protest, but the Court refused to grant it and passed orders dismissing the petition and appointing the appellee such guardian. Appeals were taken from those orders.

The petition shows that Laura L. Beatty, who was fourteen years and six months of age, is the only child of Louis ⁴⁹ M. Beatty and Mary M. Beatty, his wife; that Louis L. and Mary M. Beatty resided during their joint lives in Queen Anne’s county; that at or about the time of his death, which occurred about six years before, Mary M. Beatty removed to and took up her residence and abode in Baltimore City, where she resided until the month of May, 1912, when she removed with her daughter to her farm in Queen Anne’s county, where they resided until October 23rd, 1912, when Mrs. Beatty died intestate; that Mary M. Beatty was a widow at the time of her death and there is no father or mother of either Louis L. Beatty or Mary M. Beatty surviving. The petition then alleges: “3. That on the 26th day of October, 1912, after the death of said Mary M. Beatty, the said Laura L. Beatty of her own volition and with the consent of her uncle, said Mary M. Beatty’s brother, who resides in Baltimore City, Maryland, took up her residence, habitation and abode with her said uncle, said Arthur E. Sudler, and with the desire and intention of making said Baltimore City her permanent residence and domicile. The said Laura L. Beatty now lives and resides with her said uncle, Arthur E. Sudler, in Baltimore City, and the said Laura L. Beatty is going to school in Baltimore City, and it is her expectation and intention to continue to make Baltimore City her home and residence. 4.

The said John W. E. Sudler and Arthur E. Sudler are the only surviving brothers of said Mary M. Beatty, administrators of her estate and are tñe maternal uncles as aforesaid and next of kin to said Laura L. Beatty.” The petition then sets out the reasons why the appellee should not be appointed guardian. In determining the meaning of the expression in the statute that “the Orphans’ Court of the county in which such infant shall reside” it would not do to simply ascertain where the abode of an infant is, but as said in 21 Cyc. 24, “Although the terms ‘residence’ and ‘domicile’ are not in all respects convertible terms, the word ‘residence’ as used in the statutes relating to the appointment of guardians for minors ⁵⁰ is, according to the weight of authority, to' be construed as synonomous with ‘ domicile.’ ” It is said in 21 Cyc. 25 that “The ward cannot himself change his domicile Dy removal because he is not sui juris; nor does the removal of the ward to another State or county by relatives or friends in any way affect his domicile.” See also 15 Am. & Eng. Ency. of Law 35; Woerner’s Am. Law of Guardianship, p. 80, sec. 26.

That being so the fact that it is the expectation and intention of this young lady to make Baltimore City her home cannot alter the situation during her minority. Again, in 14 Cyc. 843, it is said: “An infant being non sui juris is incapable of fixing his domicile, which therefore during his minority follows that of the father, provided such child is legitimate;” and on page 844-, “If the father dies during the infant’s minority the power to fix the domicile devolves upon the mother who may alter it at pleasure, provided it be without fraudulent motive respecting the succession to the estate of the infant.” In 21 Cyc. 25, it is said: “The domicile of the minor for purposes of guardianship is that of its parents, or of those standing in loco parentis, even though at the time of appointment such minor may be residing in another county or in another State.” In 15 Am. & Eng. Ency. of Law 33, the rule is thus announced: “The domicile of an infant, for the purpose of conferring jurisdiction to appoint a general guardian, primarily arises from the domicile of the father, or, if the father be dead, from his domicile at the time of death. But if, since the father’s death, the mother, without fraudulent intent, has removed her residence and that of the child to another jurisdiction, the infant’s domicile will be deemed to follow that of the mother.” And on page 35: “Where, however, the parents are dead, or have relinquished the custody of their infant, and it is living with other relatives acting in loco parentis, their residence will be deemed sufficient to confer jurisdiction to appoint a guardian.” The-case of Allgood v. Williams, 92 Ala. 551 , is a leading, case and is often referred to. -The language of the ata.tu.te: in ⁵¹ force in that State at the time that decision was made was “Guardians must be appointed for minors under the age of twenty-one years by the probate Court of the county in which such minor resides.” The Court said: “Though the word ‘residence’ is often used to signify a temporary abode, it Is also used to signify a fixed and permanent home.

Residence and domicile are not in all respects convertible terms; but when ‘residence’ or ‘resides’ is employed in a statute, relating to succession, grant of administration, and of guardianship, it is generally construed to mean the legal residence and as equivalent to domicile. Jac. Dom., sec. 75.” In that case the father whose domicile was in Blount county took his child to his brother in Morgan county in the fall of 1887, which was shortly before his death. The Court said: “The expression of the father of the minor to his brother, to take his child and raise her right, made three or four weeks before his death, did not constitute the residence of the brother the domicile of the minor.

Therefore the domicile of the father, at the time of his death, determines the jurisdiction of the Court to appoint a guardian.” The Supreme Court of Alabama having determined that Blount county was still the domicile of the father reversed the order of the Probate Court of that county which had revoked the letters of guardianship previously granted hy it on the ground that the ward’s residence was not in Blount county. The mother of the child died before her father, and hence there was no question as to the mother’s domicile. In Woerner's Am. Law of Guardianship, section 26 page 80, it is said: “The residence of infants conferring the jurisdiction in the sense of these statutes' means domicile or home, as distinguished from residence, which may be temporary or for a special purpose.

The domicile of an infant is that of his father, if legitimate, or of his mother, if illegitimate, or after the father’s death, or of a grandparent or other person standing in loco parentis. The placing of a child by the father in the custody of a person residing in another county does not affect the child’s domicile, nor the mother’s ⁵² right to its custody and care after the father’s death; so that after her death the jurisdiction to appoint a guardian is in the county in which she was domiciled at the time, although she had been adjudged insane before the father’s death and never declared restored. This domicile remains until the infant legally acquires another; and since the law conclusively disables infants from acting for themselves during minority, their domicile cannot be altered by their own acts before reaching majority * * * The authorities are substantially unanimous in according to the mother while remaining a widow, the power to alter the domicile of her infant children by changing her own,” — -the latter statement of course referring to cases'where there- is no fraudulent motive in making the change. In this case we understand it to be conceded — at least not denied — that the mother did change her domicile, if