Hudson v. Von Weise ( 1907 )


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  • Gill, C. J.

    The digest further provides, in section 3465 [Ind. Ter. Ann. St. 1899, § 2361], that the father, "while living, and, after his death, the mother, if living, shall be the natural guardian of their children, and have the custody and care of their persons, education, and estates. Section 3466 [Ind. Ter. Ann. St. 1899, § 2362] provides that, if any minor have no parents living or the parents be adjudged incompetent or unfit for *241the duties of guardian, the respective courts of probate in their respective counties shall appoint guardians to such minors under the age of 14 years and admit those of that age to choose guardians for themselves subject to the approval of the court. Under the law the father of these children was their natural guardian, and, until he was adjudged by the court to be incompetent, he had the right to control their estates, and the court would have no right, without first adjudging him incompetent, to confirm the appointment of some one other than himself or his selection, in the face of the protest of the father against the appointment of Von Weise as guardian. And, the record not disclosing that the judge made a finding at any time that the father, Jesse Bohannon, was incompetent to act as guardian or have charge of the affairs of his children, it exceeded its authority in the appointment of Von Weise as guardian over his protest, and, there being error in the record, the case is reversed and remanded,- with directions to set aside the confirmation order of Von Weise's appointment as guardian and require him to give a full and perfect account of all of his acts and dpings, and proceed to appoint some competent person to act as guardian for these minor children in accordance with the statute.

    All concur. Clayton, Townsend, and Lawrence, JJ.,- concur.

Document Info

Judges: Clayton, Gill, Lawrence, Townsend

Filed Date: 9/26/1907

Precedential Status: Precedential

Modified Date: 11/9/2024