Brackett v. Brackett

• Decision Date: 06 May 1913
• Parties: BRACKETT v. BRACKETT et al. (two cases).
• Court: New Hampshire Supreme Court

87 A. 252

77 N.H. 68

BRACKETT

v. BRACKETT et al. (two cases).

Supreme Court of New Hampshire. Merrimack.

May 6, 1913.

Transferred from Superior Court, Merrimack County; Mitchell, Judge.

From a decree of the probate court dismissing her petition for guardianship with custody of her child and granting the petitions of Frank H. Brackett and Lizzie B. Brackett, for the appointment of Lizzie B. Brackett guardian with custody, Grace M. Brackett appeals. Facts found, and case transferred from the superior court. Exceptions sustained.

The appellant, Grace M. Brackett, is the mother of a son who is five years old. Frank H. Brackett is the boy's father and Lizzie B. Brackett is his grandmother. The father and mother separated prior to March 1, 1912, and have not since lived together. March 12, 1912, the father filed a petition in the probate court for the appointment of the grandmother as guardian of the child, and subsequently the mother filed a like petition for her own appointment. It is the custody of the child which is sought.

Niles & Upton, of Concord, for appellant.

George V. Hill and Martin & Howe, all of Concord, for appellees.

BINGHAM, J. The first proceeding is an appeal by the mother of a minor child from a decree of the probate court dismissing her petition asking that she be appointed guardian and awarded the custody of the child. The second is an appeal by the mother from a decree of the probate court granting the petition of the father for the appointment of his mother as guardian and awarding her the custody of the child. The reasons assigned as grounds of appeal are that the mother is a suitable person to be appointed guardian and intrusted with the custody of the child; that she is the natural guardian of the child and, as against the grandmother, is entitled to its custody and control; and that the grandmother is an unsuitable person. In the superior court it was ruled that the only question raised by the appeals was whether the grandmother was a suitable person for the trust; that if she was her appointment should be confirmed and the appeals be dismissed; and that if she was unsuitable the decree appointing her should be reversed and the case remanded to the probate court for the appointment of a suitable person, as the superior court was without authority to appoint a guardian in the event she was found unsuitable. It is upon exceptions to these rulings that the case is now before us.

According to the common law, the father is the natural guardian of his minor child and is prima facie entitled to its custody and control (State v. Richardson, 40 N. H. 272; State v. Libbey, 44 N. H. 321, 325, 82 Am. Dec. 223); and upon the father's death, without having appointed a testamentary guardian, the mother, while she remains unmarried (State v. Scott, 30 N. H. 274, 277), succeeds to his rights as guardian and is entitled to the custody of the child until it reaches the age of 14, when it may choose its own guardian. State v. Richardson, 40 N. H. 272, 276; P. S. c. 178, § 2. The natural guardianship of the father is regarded as a trust confided by law upon the...