Wood v. Henderson , 3 Miss. 893 ( 1838 )

Mr. Justice Peat

delivered the opinion of the court.

This is an appeal from the probate court of the county of Adams.

The appellants, in their petition to the ■ court below, state, that Henderson was duly appointed guardian of Frances M. Nixon; that the appellants have lawfully intermarried; and, therefore, they pray that the said guardian may be cited, &c., and that he may be ordered to deliver to the said Robert N. Wood, the husband of his said ward, all the goods, effects, and property, belonging to said ward, according to law.

The appellee in his plea states, that at the time of the intermarriage, the said appellants were minors and still are such.

The appellants reply, that the matters and things set forth in the plea of the appellee are not sufficient in law to abate the said petition, and of this they pray the judgment of the court, &c.

The court below overruled the replication, sustained the plea, and dismissed the petition.

This proceeding is based upon the following provisions of the statute: “ The powers and duties of eveiy testamentary or other guardian, over the person and estate of the ward shall cease and determine at the age of 21, or be lawfully married, and in either event, the guardian shall forthwith render a final account of his guardianship to the orphans’ court, and shall deliver up agreeably to the order of said court, to the said ward, (or to the husband as the case may require,) all the property of said ward in his hands, including bonds and other securities, and on failure he shall be liable to an action on his bond, and to fine and imprisonment for a contempt of court.” ' Rev. Code, 6S, s. 135.

The only question presented by the record for the consideration of this court is, whether minors can lawfully intermarry?

That they can lawfully intermarry we entertain no doubt. The statute expressly authorises such intermarriage. Rev. Code, 446, s. 5.

The order of the court below overruling the replication, sustaining the plea, and dismissing the petition, must be reversed, and the prayer of the petitioners granted.