Chalker v. Thornton , 31 Ga. App. 791 ( 1924 )

Jenkins, P. J.

1. The provisions of section 3037 of the Civil Code (1910), are as follows: “In the appointment of guardians the widowed mother shall have the preference, upon complying with the law. Among collaterals applying for guardianship, the nearest of Kin by blood, if otherwise unobjectionable, shall be preferred—males being preferred to females. The • ordinary, however, in every case may exercise his discretion according to the circumstances, and if necessary, grant the letters to a stranger in blood.” Prior to the adoption of the code it was said in Watson v. Warnock, 31 Ga. 716 (1), that “In Georgia no one has a right to the guardianship of an infant under the age of fourteen years, other than his own; but the power of appointment is vested in the ordinary, for the benefit of the child.” “The power is given to the ordinary to be exercised for the benefit of the infant, not the applicant. In Georgia no one can claim the guardianship of a child other than his own, as a right, no matter how clearly related.” After the adoption of the code it was held, in Johnson v. Kelly, 44 Ga. 485, that “a stranger cannot justly invoke the exercise of a discretion vested by law in the ordinary when the nearest of kin is unobjectionable;” and in Armor v. Moore, 104 Ga. 579, 581 (30 S. E. 821), the rule adopted appears to be that the next of kin, if unobjectionable, is “absolutely entitled to the guardianship without reference to other considerations.”

2. “In a contest between persons for the guardianship of the person and property of a child, to which neither is entitled as a matter of legal right, the ordinary, or on appeal the judge of the superior court, on his own motion or on request of the jury, may in his discretion ascertain the wishes of the child, by examination, as to which of the contesting parties it prefers for its guardian, although the child is under fourteen years of age.” Walton v. Twiggs, 91 Ga. 90 (1) (16 S. E. 313). In Watson v. Warnoek, supra, which was decided before the adoption of the code and was a contest between two grandparents, it was held that “the requests of the parent of the infant, on his death-bed, as to the guardianship of the person and property of the child, is a proper circumstance to be considered by the jury, and, all other things being equal, sufficient to turn the scale.” See also Churchill v. Jackson, 132 Ga. 666, 670 (64 S. E. 691, Ann. Cas. 1913E, 1203), which was also a contest between grandparents of the child. It would seem to be doubtful, however, whether- such declarations in favor of a stranger would be admissible if objected to, against one seeking appointment as next of kin, unless such declarations could be construed as throwing light upon the question of fitness. No exception is here made to this admission.

Decided March 23, 1924.

3. Construing the holdings referred to above, in the first paragraph, to mean that, as against a stranger, the next of kin, if unobjectionable, is absolutely entitled to appointment, this does not mean that he or she, in order to forfeit such right, must be proved to be deficient in habits, temper, morality, sobriety, or sense. The evidence does not attack the plaintiff in error, the next of kin, in any of these respects. If, under all the proved facts and surrounding circumstances, the jury could have been authorized to believe that for airy reason her appointment might reasonably embarrass or jeopardize the property rights of the child, the next of kin could not claim the appointment as a matter of right under the statute. The facts and circumstances appearing in the record were such as do not permit this court to say, as a matter of law, that the appointment of the next of kin would have been unobjectionable; and, the court having plainly instructed the jury that the next of kin, if unobjectionable, would be entitled, the giving of the quoted section in charge would not justify setting aside the verdict and judgment in favor of the applicant.

Judgment affirmed.

Stephens and Bell, JJ., concur. West & West, for plaintiff in error. Erwin, Erwin & Nix, contra.