10 D.C. 95 (D.C.D.C. 1879), In re Afflick's Estate

Citation10 D.C. 95
Opinion JudgeMr. Justice WYLIE
AttorneyLeonard Myers and B. A. Lockwood , for David Afflick. Edwards & Barnard , for William P. White.
CourtSupreme Court of District of Columbia

Page 95

10 D.C. 95 (D.C.D.C. 1879)


Supreme Court, District of Columbia.

September Term, 1879

I. The paternal grandfather of a deceased infant is nearer of kin by the law of this District than a maternal uncle, and is preferred as administrator, if he apply for the appointment.

II. If the child is brought into this District from the State of Tennessee by a person who has not been appointed its guardian, the domicil of the child is not changed, and the legal residence is still that of its parents at the time of their death.

III. The property of an intestate infant should be distributed according to the laws of its domicil at the time of its death.

IV. The domicil of a deceased parent continues to be that of a surviving child who was between two and three years old at the time of such death, and the distribution of such infant's estate, who died shortly afterwards, will be according to the laws of such domicil.

The facts are stated in the opinion.

Leonard Myers and B. A. Lockwood , for David Afflick.

Edwards & Barnard , for William P. White.


Mr. Justice WYLIE

The intestate died in the District on the 9th of February, 1876, at the age of about thirty months.

Her father and mother had died at Memphis, Tennessee, which was the place of their domicil in 1873, intestate, leaving this child sole heir and next of kin to each of them. The child was thus left among strangers, and in a helpless condition.

On hearing of the death of its parents, Mr. William P. White, an uncle of the child on the side of its mother, and a citizen of the State of New Jersey, but a resident of this District, hastened to Memphis, and thence returned, bringing her with him to his home, and soon afterwards was appointed guardian by decree of court in this District.

So soon as these facts became known to Davis Afflick, who was and still is a citizen of Pennsylvania, and the paternal grandfather of the child, he came to this city and made application to the court to have the appointment of Mr. White revoked on the ground that the paternal grandfather was nearer of kin to the infant than the maternal uncle, and because the court here had no jurisdiction to appoint a guardian under the circumstances; but this application was refused by the court, and Mr. White continued to act as guardian till the death of the child as above stated.

On the death of its parents, this child inherited from them a considerable amount of property, both real and personal, all having its situs in Tennessee. Of this property Mr. White, under color of his authority as guardian, succeeded in collecting about $9,000 in money, which is now in his hands, and there yet remains a considerable amount of lands and movable assets in that State, now the property of the heirs or next of kin of this deceased child.

The grandfather, Davis Afflick, has already procured letters of administration as to the personal estate in Tennessee, and is now applying here for similar authority, with a view of collecting from Mr. White the money which the latter obtained in Tennessee under color of his authority as guardian of the child in its life-time, appointed by the court here.

Mr. White is also applying for the same appointment, and the first question to be decided is, which of them, under our laws, has the better right— Mr. White, who was the maternal uncle, or Mr. Afflick, who was the paternal grandfather, of the deceased infant.

Under our testamentary act the appointment must be given to him who is next of kin, and who that is must be determined according to the rule of the civil, and not according to that of the common law. According to this rule the grandfather is in the second degree and the uncle in the third degree of kinship to the intestate; and yet according to this very act the grandfather must be postponed to the uncle in the distribution of the estate. He is to be preferred as administrator, but cannot share in the distribution. There may be a good reason for this separation between duty and privilege; but the case is different under the English statute of Charles II, and, I believe, in the laws of the States of this country.

There is a difference, also, as to the rules that control the descent of real from those which control the distribution of personal estate; but as to that, it is not now necessary to speak.

Thus far I have regarded the question under consideration as it might be affected by the laws in force in this District. But the case also presents the question as to the effect which the laws of Tennessee may have in the matter of the distribution of the personal estate lately the property of this intestate child.

If, at the time of its death, the domicil of the child was in Tennessee, this property should be distributed according to the laws of Tennessee, and by these laws the grandfather would be entitled to a share in the distribution. If, on the other hand, the domicil of the infant at the time of her decease was in this District, he would be excluded from such participation, although preferred as administrator; and this is a question of importance, and must be met, if not now, yet upon the settlement of the administration account.

It is certain that the domicil of the deceased parent continues to be that of the surviving child who was an infant at the time and at the home of the parent; nor can such infant afterwards change its own domicil, for want of legal capacity to effect such change. The domicil of the deceased parent continues to be the domicil of the infant, so that in case of the latter's death the distribution of his estate will be according to the laws of the parent's domicil, notwithstanding the child, at the time of his death, may have had his residence in another country, and have abandoned his father's domicil with full purpose never to return.

In the present case, therefore, the money which the administrator of the estate may collect in this District must be distributed according to the laws of Tennessee, and not according to our laws, unless the court should hold that the removal of the child into this jurisdiction by Mr. White and his subsequent appointment as guardian were sufficient to effect a change of domicil for the infant.

I am of opinion that the ward's domicil may be changed by his guardian, as it could have been by the parent. But in this case the change of domicil was not made by the guardian of the infant, but by Mr. White, who was not her guardian at that time; and it may well be doubted whether, under our law, there was jurisdiction for his appointment as guardian. The act of Congress confers jurisdiction upon the court to appoint a guardian in two cases: first, when the infant is the owner of property lying within this District; second, when both the person of the infant and its residence are within the District. In this law it seems to me that the term " residence" is used in the sense of domicil. If that be so, the residence which was necessary to authorize the appointment of Mr. White as guardian did not exist at the date of his appointment, for the residence of the child was still that of its parents at the time of their decease— not changed by the child, for want of capacity— not changed by White, for he was not its guardian.

Mr. Justice OLIN delivered a dissenting opinion:

This cause comes here on an appeal from an order passed on May 19, 1876, by the justice holding a special term, probate jurisdiction, granting letters of administration to one Davis Afflick on the personal estate of Rebecca B. Afflick, an infant.

The undisputed facts in the case, as disclosed by the record, are these:

This child died in the District of Columbia, on the 9th day of February, 1876, about three years of age, while in the custody and care of its uncle and guardian, William P. White, a citizen of the United States, then and now a resident of this city, and with whom it had lived since it was two and a half months old. White was appointed the guardian of the child by this court on the 19th day of August, 1873, and had in his possession some $9,000 in money and other personal effects belonging to the child when it died.

On the 15th of February, 1876, White filed a petition, under oath, in this court, stating, in substance, that the child died in this city; that it had been a resident thereof since it was two and a half months old; that at the time of its death it was domiciled here; that it left personal property within the jurisdiction of this court; that he was entitled to administer on its estate, and asked that letters of administration be granted to him.

Upon the filing of this petition the court ordered a notice to be published in one of the daily papers of this city that all parties interested appear on the 11th of March following to show cause against the grant of letters to White as prayed. This order was duly published. Nothing appears to have been done in the cause until the 24th of March, when Davis Afflick appeared and filed a counter-petition, alleging the death of the child as before stated; that its true domicil was in Memphis, Tennessee; that by the laws of Tennessee he was the next of kin and entitled to letters of administration,...

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