Peacock v. Peacock , 61 Me. 211 ( 1871 )

AppletoN, C. J.

The judge of probate appointed the appellee as guardian of Mary E. Peacock, a minor of the age of two years, upon the following petition :

“ To the judge of probate for the county of Kennebec.

The undersigned represents that it is necessary that a guardian should be appointed for Mary E. Peacock, aged two years, now resident of Farmingdale in the said county, minor child of Solomon E. Peacock late of the city of New York, deceased, and of Evelyn C.' Peacock, now of said city of New York, and prays for the appointment to that trust of himself of Farmingdale. ’

EdwaRD PeacocK, uncle of the minor, and nearest of kin in this State.”

Upon the above petition, the appellee was appointed guardian.

When the record in the case was read the appellant moved that the decree below appointing a guardian be reversed for want of jurisdiction in that court, apparent on the face of the record, and that the petition be dismissed, and the court so ruled, to which rulings exceptions were duly taken.

The ground mainly relied upon is that no notice had been given to parties interested of the pendency of the petition before the decree. We think none was required.

By R. S., c. 67, § 1, “the judge of probate may appoint guardians to minors residing in his county, or out of the State and having estate in his county,” etc. By § 2, “ If the minor is under fourteen years of age, the judge may nominate and appoint his guardian. ... If the minor is over that age, he may nominate his own guardian in the presence of the judge or register of probate, or in writing certified by a justice of the peace,” etc.

The petition is within every provision of the statute and was assumed as true by the presiding justice. The minor is under fourteen years of age and is a resident within the county of the judge of probate to whom petition was made. The mother is a resident of another State. A child of the tender age of two years should not be left without guardianship.

Now, in such case as this there is no necessity of notice. There is no body within the jurisdiction to be cited to appear, if a citation were to be required. Nor does the statute direct the giving of a citation in such case. Coltman v. Hall, 31 Maine, 196.

When the minor is over fourteen years of age and has the right to nominate his guardian, he should be cited to appear. So in case of appointing a guardian for a spendthrift or non compos mentis.

But in case of a minor under two years of age, the judge of probate appoints upon petition, as in England is done by the Chancellor. The statute relating to guardians recognizes the distinction between appointing guardians for those under and those over fourteen years, requiring a citation in the latter case and not in the former. Indeed, upon the face of the petition, ample cause is shown for the action of the probate court, for an infant of the tender age of two years, a resident of this State, should not be left a mere waif without any one to care for and protect it.

The guardian being appointed, different considerations apply when the question arises as to the care of the person and education of the minor.

By R. S. of 1871, c. 67, § 3, the guardian appointed by the judge of probate “ shall have the care and management of all his ward’s estate, and continue in office until the ■ ward is twenty-one years of age, unless sooner lawfully discharged ; but the father, if alive and competent to discharge his own business, if not, the mother, while unmarried and thus competent, shall have the care of the person and education of the minor ; otherwise, these duties shall devolve upon the guardian; and in any case, the judge may decree them to him, if he deems it for the welfare of the minor, till his further order.”

In this case, the father having deceased., “ the care of the person and education of the minor ” devolve on the mother by the statute. They cannot be taken from her without due notice and a hearing. It remains with her until, upon such hearing after notice, the judge shall decree upon the petition of the guardian, that he deems it for the welfare of the minor that it shall -be given to such guardian. Exceptions sustained.

Kent, Barrows, Danforth, and VirgiN, JJ., concurred.