Buckley v. Perrine

• Decision Date: 09 June 1896
• Citation: 34 A. 1054,54 N.J.E. 285
• Parties: BUCKLEY et al. v. PERRINE et al.
• Court: New Jersey Court of Chancery

34 A. 1054

54 N.J.E. 285

BUCKLEY et al.

v. PERRINE et al.

Court of Chancery of New Jersey.

June 9, 1896.

Habeas corpus by Julian Gerard Buckley and Mary Kemble Slack against Lewis Perrine and another to free the infant children of petitioner Slack from alleged illegal restraint Respondents move to set aside orders adjudging them to be in contempt, and a decree awarding the custody of the children to their mother. Granted.

On the 9th day of October, 1895, Julian Gerard Buckley, in behalf of his sister Mary Kemble Slack, presented a petition, entitled "In Chancery of New Jersey," to John T. Bird, Esq., one of the vice chancellors of the state. The petition is addressed to "His Honor, John T. Bird, Vice Chancellor of the State of New Jersey," and, on the day of its presentation, was filed in the chancery clerk's office. The petition alleges that Mary Kemble Slack is the widow of William Hall Slack, deceased, who died in this state on the 2d of October, 1895; that there were born to William Hall Slack and Mary Kemble Slack two children, Mary and Addie, aged, respectively, eight and ten years; that in March, 1894, Slack deserted his wife and children, and went to reside at Trenton, in this state, with Lewis Perrine and his wife, and thereafter did not provide for the maintenance and support of his wife and children; that at his request, on the 16th of October, 1894, Mrs. Slack, who then had the custody of the children, permitted them to visit their father at the house of Lewis Perrine, at Trenton; that the children have been detained hitherto at Trenton, first by their father, and then by Perrine and his wife; that the mother has endeavored to regain possession of them; that Lewis Perrine refuses to give them up to her, alleging that, by his will, the father of the children made the wife of Lewis Perrine their guardian, and awarded to her their custody. The petition prays that a writ of habeas corpus may issue to bring the children before John T. Bird, vice chancellor, that they may be released from their illegal restraint by Lewis Perrine, and delivered to the petitioner and their mother. Upon the presentation of this petition, the vice chancellor addressed in it indorsed upon a writ of habeas corpus these words: "Allowed by the statute. John T. Bird, V. C." The writ commands the production of the children before "John T. Bird, Vice Chancellor of the State of New Jersey," and is attested in the name of the same official. It is sealed with the seal of the court, of chancery, signed by the clerk of that court, indorsed as though in a cause pending in that court, and now remains on file in the chancery clerk's office. Upon the return of the writ, an order was made by "John T. Bird, V. C," indorsed as though in a cause pending in the court of chancery, like the writ of habeas corpus, which order recited that Lewis Perrine claimed to have been unable to prepare a return to the writ of habeas corpus, and also that Addie Slack Perrine was the real custodian of the children; that the court was of opinion that time for making the return should be extended, "and," using the language of the order, "that in order to properly raise the issue to be tried in the cause touching and concerning the permanent custody of the aforesaid minor children, that Addie Slack Perrine should be made a respondent with him in the said cause"; and it was thereupon ordered (the solicitors of the respective parties to the proceeding, and of Addie Slack Perrine, consenting) that the return day be extended, and that Addie Slack Perrine be made a party respondent. Later, counsel tiled with the clerk of the court of chancery formal written appearances for Lewis Perrine and his wife, as though in a cause pending in that court between Julian Gerard Buckley, as petitioner, and Lewis Perrine, as respondent. And later they filed a paper, entitled "In Chancery of New Jersey," addressed to "John T. Bird, One of the Vice Chancellors of the State of New Jersey," and styled "The Answer of Lewis Perrine to the Petition of Julian Gerard Buckley, and for His Return to the Writ of Habeas Corpus Thereon Issued." This paper denies that Lewis Perrine has or had the custody of the infants, and avers that his wife, Addie Slack Perrine, has such custody, under the appointment of her as the testamentary guardian and custodian of the infants by their father's will. It also avers that William Hall Slack was, at the time of his death, domiciled in the District of Columbia, where his will had been theretofore offered for probate; and it insists that, by such offer for probate, the supreme court of the District of Columbia has acquired jurisdiction of all questions as to the validity of the will, and as to the custody and guardianship of the infants. It denies the right of John T. Bird, vice chancellor, to determine the question of the legal right to the custody of the children. It also objects that Julian G. Buckley is without power and right to prosecute the petition in behalf of his sister, who is sui juris. By a document of similar character, entitled and addressed in the same way, Addie Slack Perrine also responded that she has the bodies of the children before the court, as commanded; that she is the sister of the father of the children, and detains the infants in her control, and has declined to deliver them to the petitioner, or any other person; that she detains them in virtue of the laws in force in the District of Columbia; that the children, their father, and their mother were all domiciled in the District of Columbia, and the children have no property in New Jersey, and were only temporarily sojourning in this state with their father at the time of his death; that, by the laws of the District of Columbia, the father was empowered to effectually bestow the custody of his infant children by deed or will; that on the 12th of July, 1895, William Hall Slack made his will, disposing of the custody of his infant daughters to the respondent Addie Slack Perrine; that on the death of the father, on the 2d of October, 1895, the respondent took the custody of the children; that on the 5th of October, 1895, the will of Mr. Slack was offered for probate in the District of Columbia, and the supreme court of that District has taken the jurisdiction in the premises, and is now passing upon the validity of the will; that such question of validity will determine the right of custody of the children, and the supreme court of the District of Columbia, having first taken jurisdiction of the question, is entitled to retain it; that, as she has the legal right to the custody of the children, it cannot be disturbed except for the benefit of the infants; that the mother is not a fit and proper person to have the care of girls of tender years, and the interest of the infants lies in their remaining in the custody of the respondent; that the mother is intemperate, of violent temper, addicted to the use of profane, indecent, and lewd language, and has conducted herself in public and private in a lewd and indecent manner.

On the 18th of October, 1895, by the consent of counsel for Lewis Perrine and Addie Slack Perrine, John T. Bird, V. C, ordered that the petition and writ be amended by inserting therein the name of Mary Kemble Slack as petitioner, claiming the custody of the children, because, as the order recites, Addie Slack Perrine claims that Mary Kemble Slack (using the language of the order) "is not a fit and proper person to have their custody, and the said Mary Kemble Slack being desirous of answering the said return in her own right and person, to do which it becomes necessary for her to be made a party petitioner in this cause," etc. Mr. Buckley and Mrs. Slack then traversed or answered the return of Mrs. Perrine, entitling the document as a cause in chancery, like the other papers filed in the matter. This paper admits that Mrs. Perrine is the sister of William Hall Slack, the father of the children, and that she detains the children. It denies that the detention is justifiable under the laws of the District of Columbia. It admits that William Hall Slack was domiciled in the District of Columbia to the time of his death. It denies that the children were domiciled there, and that the question as to their custody depends upon the laws in force there. It denies that a will of William Hall Slack exists, and that application for probate of a paper purporting to be such a will ousted this court of jurisdiction to determine the right to the custody of the children. It insists that that right is determined by the laws of this state; and also that it is not to the interest of the children to remain in the custody of Mrs. Perrine; and that it is to their interest to go to the custody of their mother, their guardian by nature and for nurture, because the mother is a fit and proper person, and is not intemperate, of violent temper, addicted to the use of profane, lewd, and indecent language, or insane, or an adulteress, etc. A traverse is also filed to the answer or return of Lewis Perrine. On the 9th of November, 1895, on application by the solicitors of both parties, Vice Chancellor Bird appointed a commissioner to take the depositions of witnesses de bene esse in the city of Washington. Later, by verbal direction, he committed the custody of the children, pending the proceedings, to the custody of Mr. and Mrs. Perrine, with privilege to their mother to see them. On the 21st of November, the vice chancellor ordered that the hearing upon the issue whether or not the mother is a fit and proper person to have the custody of her children proceed before him on the 26th of November. On the 25th of November, ex parte application in behalf of Mrs. Slack was made to the chancellor, to refer the proceedings to Vice Chancellor Bird (as though they were regularly pending in the court of chancery), to hear the same for the chancellor, and report thereon to him, and advise...