Fitzpatrick's Guardian v. Baker

• Citation: 227 Ky. 788
• Court: United States State Supreme Court — District of Kentucky
• Decision Date: 05 February 1929
• Parties: Fitzpatrick's Guardian v. Baker et al.

Page 788

227 Ky. 788

Fitzpatrick's Guardian v. Baker et al.

Court of Appeals of Kentucky.

Decided February 5, 1929.

1. Guardian and Ward. — Right of guardian to custody of minor ward, under Ky. Stats., sec. 2032, is not an absolute one; but matter of custody is subject to control by court, and controlling consideration is the best interest of the child.

2. Guardian and Ward. — Under Ky. Stats., sec. 2032, where mother's relatives took children after death of mother and her husband, and put them in school, and guardian was later appointed for children, custody of children should be surrendered to guardian at end of school year, but no change should be made until then.

3. Domicile. — Domicile of children is the domicile of their father.

4. Guardian and Ward. — Controversy between guardian and maternal relatives of minor children is matter that should be adjudicated by courts of their domicile.

5. Guardian and Ward. — Under Ky. Stats., sec. 2032, where maternal relatives of children placed them in school after their mother's death, and guardian was later appointed, guardian should pay all reasonable and necessary expenses at such school, and also pay relatives for all reasonable and necessary expenses for clothing, etc., bought for children.

6. Guardian and Ward. — Where mother's relatives, after her death, took children to their home, and guardian was later appointed, and relatives kept children against consent of guardian, they cannot make charge against guardian for board of children at their homes.

7. Executors and Administrators. — Mother's brother, who took children after death of their mother and father, had no right to set off what he expended for children against what he owed estate of father.

Appeal from Perry Circuit Court.

T.E. MOORE, JR., J.A. SMITH and E.C. O'REAR for appellant.

JESSE MORGAN, F.J. EVERSOLE and W.C. EVERSOLE for appellees

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Reversing.

Dr. J.F. Fitzpatrick died intestate August 17, 1927, a resident of Whitesburg, Ky. His wife, Eunice Fitzpatrick, died six days later. They left surviving four children, the oldest of whom was then 13 years old, and the youngest 7 or 8. Mrs. Fitzpatrick was a sister of William Baker, who lived at Hazard, Ky. She had a number of other relatives, who also lived in Perry county, where she had been reared. The Baker family all came to the burial. Dr. Fitzpatrick's mother lived with him. She was 84 years old and very feeble. A sister, Mrs. Thompson, also lived at Whitesburg. In addition to the four children born to his wife, Dr. Fitzpatrick had a son, whom he had adopted, who was about 17 years of age. After Mrs. Fitzpatrick's burial, her family and Dr. Fitzpatrick's relatives had a consultation as to what would be done with the children. As a result of this consultation, the Bakers took the four children of Mrs. Fitzpatrick with them to Hazard, took care of them until the school opened on the first Monday in September, and then placed them in the Hazard Baptist Institute, a school maintained by the Baptist Church. On September 5th, F.G. Fairchild was duly appointed as administrator of the estate of Dr. Fitzpatrick and also as guardian of the children. He gave bond in the sum of $100,000. The estate was estimated to be worth from $75,000 to $100,000. On September 10th, he demanded the children from William Baker and the Hazard Baptist Institute. The demand was refused. Then he took out a writ of habeas corpus for them. This was refused by the circuit judge on September 14th. Then he took out a rule in the Letcher county court against William Baker to show cause why he should not be fined for not obeying the order of that court as to the delivery of the children to the guardian. The rule was made absolute, and they were arrested for failing to obey the order of the court, but were discharged by the circuit judge on habeas corpus, on the ground that the county court acted without jurisdiction. Then, on October 20th, he brought this suit in equity, praying that the court adjudge the custody of the children to him. Proof was taken, and on final hearing the circuit court dismissed the petition. He appeals.

The witnesses differ as to what took place between the relatives after the burial of Mrs. Fitzpatrick, but Mrs. Thompson and her mother had no authority to control the custody of the children beyond the appointment of a guardian, and the court deems it immaterial to consider what agreement was then reached. Mrs. Baker had been educated in the Hazard Baptist Institute, and after her course was finished had taught there until her marriage. All her relatives lived in Perry county, and a number of Dr. Fitzpatrick's relatives also lived there. The Bakers, in taking the children home with them, evidently acted from the natural feeling to take care of their sister's little children. But their right to the custody of the children after the appointment of the guardian is a different question.

Section 2032, Kentucky Statutes, provides:

"A guardian shall have the custody of his ward, and the possession, care and management of the ward's estate, real and personal, and out of the estate shall provide for the necessary and proper maintenance and education of the ward."

The rule applied under like statutes is thus stated in 28 C.J. pp. 1109, 1110, secs. 171, 172:

"A lawfully appointed general...