In re the Guardianship of De Marcellin

DyKmant, J.:

Mary Louisa de Marcellin is an orphan child, abSut nine years of age. Her only relatives, so far as we know, are a paternal uncle and aunt. At the time of the death of her father in January, 1880, he was living with his second wife, and this child resided with him. A day or two before his death and when he was beyond recovery, he wrote these words on a piece of paper and handed it to his wife: “ Keep the children. Be a good Catholic, live a good Catholic and die a good Catholic, and pray, pray for me when I am dead.”

Thereupon, after the death of her husband, the stepmother applied to the surrogate of Kings county to be appointed the general guardian of the child. The father left no property, and neither the stepmother nor the child have any. The application was opposed by the aunt of the child who has some property, and who desired herself to be appointed the guardian of the child. The surrogate appointed the stepmother, and from that order this appeal is taken.

It is plain, therefore, that this controversy has reference alone to the custody of this child. She has no property, and there is no allegation against the fitness of either of these applicants for such custody, except that the stepmother has no property.

It is quite true that in the ordinary view it seems more desirable that the child should reside with the aunt and enjoy the comforts of a home in her family, but this consideration cannot overcome the dying, wishes of her father. His declared will in relation to the custody and religious education of his child should be followed under the circumstances of this particular case. (Underhill v. Dennis, 9 Paige, 208.) He had the power to dispose of the custody of this child if he had exercised it in a legal manner, and we think his wishes, expressed as they were, should now control and be carried out, and that the surrogate exercised, his discretion well.

The order must be affirmed, with costs and disbursements.

BaRNAed, P. J., concurred; Gilbert, J., if guardian a fit person.

Order affirmed, with costs and disbursement.