In re the Guardianship of O'Connell , 102 Iowa 355 ( 1897 )

Ladd, J.

1 The appeal of Theresa O’Connell may be first considered. The evidence shows that she is unmarried, and her occupation that of a school teacher. She was always on good terms with the child and its mother, but has no affection for him other than that of a near relation. Her employment is not permanent, and existing conditions may reasonably be expected to change. On the other hand, Mrs. Donahue is a married woman, now has custody of the child, treats him as one of her own children, is able to care for him, and wishes to do so. True, she had at one time some dispute with her deceased sister, but not of such a character as would interfere with the proper nurture and training of this son. Under the circumstances, we think the court rightly permitted the minor to remain with Mrs. Donahue.

2 II. A more difficult question is presented by the appeal of Drs. Skinner and Johnson. The mother requested in her last will that they be guardian of her son and orally expressed her desire to the same effect, shortly before her death. Testamentary guardianship is not authorized in this state, In re Johnson, 87 Iowa, 130 (54 N. W. Rep. 69); but the expressed wish of the parent, and especially when made shortly before dissolution, will influence the court, and other things being equal, will determine the appointment. 9 Am. and Eng. Enc. Law, 93, and notes. No question concerning the fitness of either Dr. Skinner or Dr. Johnson is raised, and they are willing to act as guardian without compensation. They are not related to the child, however, and undertake the trust largely because of the dying request of the mother. What disposition would be made of the child by them. does not appear. What has already been said of Mrs. Donahue’s care of the child need not be repeated. He has a good home with her, is contented, and well provided for. She is his aunt, and has a natural interest in his welfare. The dispute with the child’s mother, heretofore referred to, was occasioned by the claim that the conveyance of forty acres of land by her father to her brother was in the nature of an absolute gift, and not by way of an advancement. The evidence that she referred to her sister in opprobrious terms is indignantly denied. Her property interests and those of the child are not in conflict. Were this case triable de novo, however, we should feel bound to regard the dying request of the mother. It is prosecuted by ordinary proceedings, and “the findings of the court are entitled to the effect of a verdict, as all the reasons for the rule as to verdicts apply with at least equal force to the findings of the court.” Lawrence v. Thomas, 84 Iowa, 362 (51 N. W. Rep. 11). The selection of a guardian is, of necessity, largely within the discretion of the court appointing, and it is only when there is a clear abuse of discretion that this court will interfere. In re Johnson, supra. The welfare of the boy is of controlling importance, and we cannot say from the record before us that the district court so abused its discretion as to justify interference with its decision. — Affirmed.