Hindorff v. Sovereign Camp of Woodmen of World

• Decision Date: 09 February 1911
• Citation: 129 N.W. 831,150 Iowa 185
• Parties: A. E. HINDORFF, Guardian of Elizabeth Carson, v. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD, Appellant
• Court: Iowa Supreme Court

129 N.W. 831

150 Iowa 185

A. E. HINDORFF, Guardian of Elizabeth Carson, v. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD, Appellant

Supreme Court of Iowa, Des Moines

February 9, 1911

Appeal from Jasper District Court.--HON K. E. WILLCOCKSON, Judge.

ACTION on a certificate of membership of Archibald Carson, the father of plaintiff's ward, in the defendant association providing that on the death of such member the benefits named in such certificate should be payable to said ward. There was a demurrer to the petition which the court overruled, and defendant electing to stand on its demurrer, judgment was rendered for plaintiff, from which defendant appeals. Affirmed.

Affirmed.

Arthur H. Burnett and Frank H. Dewey, for appellant.

McElroy & Cox, for appellee.

OPINION

MCCLAIN, J.

By its demurrer the defendant questioned the jurisdiction of the court of Jasper county to appoint plaintiff to be guardian of the estate of Elizabeth Carson, and the right of said guardian to maintain an action on the certificate of which the ward was a beneficiary, the defendant association not being an incorporation having its principal place of business in this state, but doing business in the state and properly served with notice of the action by service on the State Auditor, the sufficiency of which is not questioned, provided action on the certificate could be maintained in this state.

The allegations of the petition as originally filed, so far as they bear upon the jurisdiction of the court in Jasper county to appoint plaintiff as the guardian of the estate of Elizabeth Carson and the authority of plaintiff as such guardian to maintain this action, were as follows "First. That the plaintiff is duly appointed, qualified, commissioned and acting guardian of the property of Elizabeth Carson, who is now, and during all of the times herein mentioned has been, a nonresident alien, of unsound mind, residing in the kingdom of Great Britain, and having both real property and personal property in Jasper county, Iowa said appointment having been duly and regularly made by this court and by virtue of sections 225 and 3202 of the Code of Iowa." Subsequently an amendment to the petition was filed containing the following allegation: "That said Elizabeth Carson was supported by said Archibald Carson from the date of her birth to the time of his death; that said Elizabeth Carson became of unsound mind when she was about twelve years of age, and has ever since remained of unsound mind."

The demurrer was made applicable to the petition as amended, and we therefore have a case where the proper court of a county has appointed a guardian of one who appears by other averments in the petition to have died a resident of that county; such daughter having been of the age of twelve years when she became of unsound mind and having remained of unsound mind until such guardian was appointed. There is no question as to the proposition that the legal domicile of a minor child is that of the father, regardless of the actual place of residence of such child, and that a person of unsound mind is incapable of a voluntary change of domicile. Jenkins v. Clark, 71 Iowa 552, 32 N.W. 504; In re Guardian of Benton, 92 Iowa 202, 60 N.W. 614; McIntire v. Bailey, 133 Iowa 418, 110 N.W. 588; Washington County v. Polk County, 137 Iowa 333, 113 N.W. 833; Minor, Conflict of Laws, pp. 36, 54. The court, therefore, had authority to appoint plaintiff guardian of the estate of Elizabeth Carson with authority to bring any action in the state for the purpose of collecting debts due to her estate which she might have brought if she had been a person of sound mind and of full age domiciled in that county.

It is only necessary for the plaintiff in bringing such an action to describe himself as guardian of...