Wynne v. Always

• Decision Date: 31 December 1804
• Citation: 5 N.C. 38
• Court: North Carolina Supreme Court
• Parties: ELIZABETH WYNNE v. MISHAW ALWAYS.

5 N.C. 38

ELIZABETH WYNNE

v.MISHAW ALWAYS.

COURT OF CONFERENCE OF NORTH CAROLINA

DECEMBER TERM, 1804.

The appointment of a guardian rests in the discretion of the court.

APPEAL to New Bern Superior Court, on a guardianship. The questions reserved for the opinion of this Court were, "Whether the choice of a guardian, made by a person between the ages of fourteen and twenty-one years, is absolute so as to preclude the exercise of the judgment of the County Court on

any point not relative to the security to be given." If this question be determined in the negative, "Whether the court, who rejects the choice, is not to give leave to the minor to nominate a more proper person," or "Whether the court may not appoint the person to them most proper."

If the court are of opinion that the County Court may appoint without regarding the choice of the infant, or offering him a second nomination, the judgment to be for the defendant; otherwise, for the plaintiff.

BY THE COURT. Guardianship in socage departed with tenure in socage. The court is not bound to appoint the next of kin, or the person chosen by a minor above fourteen years of age; but by virtue of the act of Assembly may and ought to appoint that person who, in their discretion, they believewill best execute the duties of the appointment.