Citation Numbers: 148 N.E. 630, 240 N.Y. 444
Judges: POUND, J.
Filed Date: 7/15/1925
Status: Precedential
Modified Date: 1/12/2023
By a judgment of divorce against Mary Casey Thorne, the respondent herein, custody of the infant child of herself and her husband was awarded to the husband and she was found not fit, competent or a proper person to have custody of it. Thereafter the husband died. His domicile and, therefore, that of the child up to the time of his death was in Dutchess county. The mother is domiciled in New York county. The child is not in her actual custody. Dutchess County Surrogate's Court, without citing her, appointed guardians of the person and property of the infant. She thereafter appeared and moved to vacate the letters of guardianship on the ground that the court had no jurisdiction to appoint guardians; that the Surrogate's Court of New York county alone had such jurisdiction for the reason that on the death of the father the domicile of the mother *Page 447 became the domicile of the child. Her motion was denied. The Appellate Division reversed and granted an order vacating the letters of guardianship.
The question is as to the jurisdiction of the Surrogate's Court of Dutchess county. The Surrogate's Court Act (§ 174) provides:
"Where an infant has no guardian, a surrogate's court has jurisdiction to appoint a general guardian of an infant's person, or property, or of both, in the following cases:
"1. Where the infant is a resident of that county, or has sojourned in that county for at least one year immediately preceding the application.
"2. Where the infant is not a resident of the state, but has property, real or personal, situated in that county."
The appellants contend that because the mother was, by the decree of divorce, adjudged to be an unfit person to have the custody of the child, the general rule that infants have the domicile of the father and after his death the domicile of the mother ceases to apply and that the legal domicile of the infant remained in the county of the father's domicile. Their position rests wholly on the proposition, not that the child had in fact a residence of its own in Dutchess county or was sojourning there, but that the law continued his domicile in Dutchess county exnecessitate as if both parents were dead and the child had acquired no domicile with his natural guardian. (Lamar v.Micou,
The question is an interesting one which leads into the shadow land whence legal fictions have their origin.
Why at common law was the domicile of an infant necessarily that of the father? Not because the child *Page 448
actually resides with him and is a part of his family. Rather because of the patria potestas of the father; the tutelege of the child and the headship of the family of which the child is a part; the reciprocal rights and duties of father and child. "The legal inseparability of father and child is essential to their mutual legal obligations." (Beale on Domicil of an Infant, 8 Cornell Law Quarterly, 103.) Even though the child is in fact living apart from the father, his legal domicile was nevertheless with the father. (Murdock v. Ward,
The decree of divorce merely disposed of the question of the custody of the child as between husband and wife. This is the rule in most jurisdictions that have passed on the question although the contrary doctrine is not without support. (Barnes
v. Long,
The Surrogate's Court of Dutchess county had no jurisdiction to appoint a general guardian unless the infant was a resident of the county. (Surrogate's Court Act, § 174.) Residence and domicile here mean the same. The infant, generally speaking, has no legal residence of his own, whatever his place of abode may be. In this connection the extension of the mother's right of joint guardianship seems relevant as bearing on the practical result. The identity of person of husband and wife is no longer a fetish of the law. The residence of the infant is no longer exclusively that of the father. It may be the residence either of the father or the mother. As the mother is the joint guardian of the children with the husband, if the wife has selected her own domicile, as she may, whenever it is necessary or proper for her to do so (Williamson v. Osenton,
It is urged that practical difficulties are in the way of the application of this rule of domicile to cases where the mother is a non-resident and the child is in the State. They may be easily surmounted. If the mother is a non-resident of the State but the infant has property, real or personal, situated in the county, the Surrogate's Court of the county may appoint a guardian (Surrogate's Court Act, § 174), so if the mother lives in China or Peru a guardian might be appointed here if such jurisdictional facts appeared. If a mother in China or Peru were not asserting her rights of guardianship, the Surrogate's Court of the county of actual sojourn of the child might have jurisdiction to appoint a guardian of the person and the property. (Surrogate's Court Act, § 174.) Nor is the jurisdiction of the Surrogate's Court exclusive. The jurisdiction of the Supreme Court to appoint guardians of infants within the jurisdiction does not depend upon the legal domicile of the infant if the infant is actually dwelling within the State. (Matter of Hubbard,
The order should be affirmed, with costs.