Montgomery v. Smith , 33 Ky. 599 ( 1835 )

Chief Justice Robertson

delivered the Opinion of the Court.

In 1823, the County Court of Adair appointed Francis Montgomery guardian for Robert Montgomery.

In 1834, the County Court of Russell county, without the knowledge of Francis Montgomery, permitted Robert Montgomery (then being, as alleged, fourteen years old,) to choose another guardian, and thereupon appointed William Smith, the person so chosen, as guardian, in lieu of the former guardian.

The only question now to be decided, is, whether the County Court of Russell had jurisdiction to thus supplant the guardian who had been appointed by tlje County Court of Adair.

As the Court of the county of an orphan’s actual domicil may have power to appoint a guardian, and as a ward may, on attaining fourteen years of age, supersede his appointed guardian, by choosing another person for guardian — we perceive no objection to the power of the County Court of Russell, if, as we infer, Robert Montgomery was domiciled in that county, and if also, he was fourteen years of age when he chose Smith for guardian; for the ward had a perfect legal right, by election, to terminate the authority of Francis Montgomery.

But as the right to supersede Francis Montgomery depended on the fact, that the ward had attained fourteen years of age, and as such a fact is not necessarily determinable by inspection in Court, but may be proved or controverted by other evidence, we are of the opinion, that Francis Montgomery was entitled to no* tice of the intended application to the County Court of Russell, so as to have had an opportunity of proving that the ward was not fourteen years old, if the fact were so.

Wherefore, for this cause alone, the order superseding the guardianship of Francis Montgomery, by appointing Smith, is set aside.