Sessions v. Kell , 30 Miss. 458 ( 1855 )

Fisher, J.,

delivered the opinion of the court.

The appellee was appointed by the Probate Court of Franklin county guardian of the appellant, while he was an infant under the age of fourteen years. Having attained this age, he filed his petition in said court, selecting his brother as his guardian, and praying that the letters of guardianship granted to the appellee, might be revoked, and letters granted to the person selected.

The court below sustained a demurrer to the petition, on the ground that an orphan can only exercise the right of choosing his guardian, where none has been appointed by the court before he arrives at the age of fourteen years.

The statute provides, that where no guardian has been appointed by deed, or last will and testament, or in case the person so appointed renounce the trust, or fail to give security, “the court shall have power to allow orphans of the age of fourteen years, or upwards, to choose guardians of their own election,” &c. Hutch. Code, 505, § 125. The fair construction of this'statute is, that the orphan may exercise this right after arriving at the age of fourteen years, regardless of any appointment made by the court before he had the right to make his election, unless the guardian derives his authority from the deed or last will and testament of the orphan’s father. Such was the rule at the common law in regard to guardianships in socage. 2 Kent, 228.

Decree reversed, demurrer overruled, and cause remanded.