Burger v. Frakes
| Decision Date | 10 December 1885 |
| Citation | 23 N.W. 746,67 Iowa 460 |
| Parties | BURGER, BY HIS NEXT FRIEND, v. FRAKES |
| Court | Iowa Supreme Court |
Appeal from an order made by Hon. H. C. Traverse, Judge of the Circuit Court of the Second Judicial District.
THIS is a proceeding by habeas corpus to determine the claims of the parties to the custody of the minor plaintiff. Upon the hearing, the circuit judge held that defendant was in law entitled to the custody of the minor, and so ordered. The order was made of record in the circuit court of Davis county. Plaintiff, the guardian and next friend of the minor appeals.
REVERSED.
Payne & Eichelberger and Jones & Steele, for appellant.
S. S Carruthers, for appellee.
I. Aaron Burger, whom we shall designate as plaintiff, is the paternal grandfather of the minor, a child four or five years old, whose custody is in controversy in this suit, and defendant is his maternal grandfather. The plaintiff was appointed guardian of the minor by the proper court. He claims in this action custody of the minor as the guardian of his person and property. Defendant claims the custody of the child under an act of adoption, made subsequent to the appointment of plaintiff as guardian, and without his consent, and upon the further ground that the mother who survived the father, before her death, gave the child to him.
The plaintiff disputes the validity of the act of adoption, and denies both the fact and validity of the gift of the child by the mother. Defendant contends that plaintiff is not the guardian of the person of the minor, claiming that his guardianship extends only to the property of the ward. This statement of the issues indicates the leading and decisive questions in the case, which are these: (1) Is the plaintiff the guardian of the person of the child? (2) Is the act of adoption valid and effective to confer upon defendant the right to the custody of the child? (3) Was there a valid gift of the child which confers upon defendant the right to its custody? There are other questions discussed by counsel, but they are subordinate and collateral. They will be hereafter stated, so far as it may be necessary to consider them in this opinion. We will proceed to the consideration of the questions we have above stated.
II. Is the plaintiff the guardian of the person of the child? The petition upon which the appointment of plaintiff was made prays that he be appointed guardian, without specifying the powers that shall be conferred upon him. The record of the appointment, the letters of guardianship and the guardian's bond are in the same general language, and do not prescribe his duties and powers. In the oath of qualification he undertakes to discharge the duties of guardian of the person and property of the minor. It must be conceded that plaintiff was appointed as the guardian generally, without words of limitation or qualification. It cannot be doubted that a guardian so appointed, in the absence of a statute to the contrary, would be charged with the duties of a guardian of the person and property of the ward. The term "guardian," without words of limitation, describes one who is charged with the care and custody of the property and person of the ward. See Schouler, Dom. Rel., 436. Our statute does not provide for the appointment of a guardian whose powers shall be limited to the care of the ward's property, except in one case, viz., where the minor has property not derived from either parent. Code, § 2243. It is true that sections 2246 and 2250 prescribe that the guardian of the property of a minor shall give bond and must prosecute and defend actions for his ward. But, by the use of the term "guardian of the property," the sections are aptly applied to guardians generally, who have the care of the property and person of the ward, and to the single case of a guardian for the property only, contemplated in section 2243. The occurrence of the expression does not support the position that the general term "guardian" does not describe guardians who are charged with the custody of both the person and property of the ward. Section 2249 prescribes the power and authority of guardians of the persons of minors. This provision gives no support to the position that the statute provides for the appointment of guardians with authority limited to the property of the ward, except in the case contemplated in section 2243. The word "guardian" is obviously used in the statute as a general term, and applies to both guardians of the property and guardians of the persons of the ward.
It is not necessary to determine whether a minor may have two guardians, one of his person and the other of his property, as we hold that the plaintiff, being appointed guardian without limitation upon his power and authority, must be regarded as the guardian of the person and estate of the ward. It would appear probable that the law does not contemplate an appointment in any case of two guardians. Code, § 2243, which provides for the appointment of a guardian of the property of a minor, doubtless contemplates that the parents should retain the care, custody and control of his person. It appears, too, that the appointment of two guardians would not operate to the advantage of the ward. The guardian having control of his person ought to determine as to his education and other matters involving the expenditures from the income and avails of his estate. If there should be a guardian of the property of the minor, he could impede or arrest the lawful acts of the other guardian pertaining to these matters. Disagreements and conflicts might arise in this way, which would be to the detriment of the ward.
III. The defendant made application, by petition, to the circuit court to be appointed guardian of the person of the minor. The clerk, in vacation, entered an order appointing defendant such guardian, but the court, in term, set the order aside. Defendant does not and cannot claim that the appointment is in force, or that under it he can claim to exercise any of the powers or duties of a guardian. The plaintiff insists that the proceeding, wherein the clerk appointed the defendant guardian, and the order of the court setting it aside, operate as an adjudication of the questions involving the power of the court to appoint a second guardian, and of the authority of the plaintiff to act as the guardian of the person of the minor. We waive the consideration of this question, as its determination becomes unnecessary in view of the conclusion we reach, that plaintiff is, by virtue of his appointment, the guardian of both the person and estate of the minor.
IV. We come to the consideration of the second question involved in the case, viz.: Is the act of adoption valid and effective to confer upon the defendant the right to the custody of the child? Code, §§ 2307-2311, provides for the adoption of children. Section 2307 prescribes that persons competent to make a will are authorized to adopt the minor child of another, thereby conferring upon him "all the rights, privileges and responsibilities which would pertain to the child if born to the parents adopting in lawful wedlock." The other sections, excepting 2311, are in the following language:
It will be observed that in these sections no mention of or reference to a guardian is made, if the child have one. It is not provided that by adoption a guardian may be robbed of his authority and relieved of his duties toward his ward. If these sections are held to have such effect, it must be done by construction of their language. Such a construction, practically, would have the effect to remove a guardian; to take from him the care and custody of his ward and leave him, while still guardian, without authority, power or duties. The statutes declare that " guardians of the persons of minors have the same power and control over them that parents would have if living." The authority and power of parents are those of natural...
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