In re Sherman , 70 Hun 465 ( 1893 )

MAYHAM, P. J.

It is insisted on the part of the petitioner that the order of the surrogate appointing Jesse O. Conde guardian should be set aside on the ground that, at the time of the making of the order appointing said guardian, he was ineligible, on account of Ms residence, and that the surrogate had no jurisdiction of the infant, upon the same ground. Section 2822 of the-Code of Civil Procedure gives the surrogate of the county in which an infant resides—or, if he do not reside in the state, of the county in which his property, real or personal, may be in the state— jurisdiction to appoint a’ general guardian for the infant. The question whether the infant and guardian were or were not residents of the county of Saratoga was one to be determined by the surrogate to whom the application for the appointment of guardian was made. It was a question of fact, under the conflicting evidence in this case, whether the proposed Jesse O. Conde was a resident of the county of Saratoga, or the commonwealth of Massachusetts. That question of fact was determined by the surrogate in favor of the guardian, and, there being some evidence before the surrogate to uphold that determination, this court, on appeal, should not reverse the decision of the surrogate on that ground. While it is true that the assertion of jurisdiction by the surrogate in himself would not confer jurisdiction, yet when, acting upon conflicting evidence, he is required to settle the conflict,- and if, in doing so, his determination is supported by any evidence, it must be sustained. Assuming, therefore, that the surrogate had jurisdiction to issue the letters of guardianship to Jesse O. Conde, there is no reason shown, on this application, for Ms removal. The whole evidence tends to show that he is a proper man to exercise the trust, and that he is exercising the same prudently and humanely, and for the best interest of his ward. We see no reason for reversing the decision and order of the surrogate, from which this appeal is taken, and the order must be affirmed, with costs.

Order affirmed, with $10 costs and printing disbursements. All concur.