In re Benton

• Decision Date: 17 October 1894
• Parties: IN RE BENTON ET AL.
• Court: Iowa Supreme Court

92 Iowa 202

60 N.W. 614

IN RE BENTON ET AL.

Supreme Court of Iowa.

Oct. 17, 1894.

Appeal from district court, Bremer county; John C. Sherwin, Judge.

Appeal from an order dismissing the petition of David M. Benton, guardian of George O. Benton and Grace Benton, asking that certain money in the hands of E. L. Smalley, as guardian of their property, be transferred to David M. Benton, who is the duly-appointed guardian of their persons and property within and for the county of Trempealeau, in the state of Wisconsin. Reversed.Fruit & Brindley, Utt Bros. & Michel, for appellant Benton.

G. W. Ruddick, for appellee Smalley.

DEEMER, J.

Manley J. Benton, father of George O. Benton and Grace Benton, died intestate at Waverly, Iowa, on the 15th day of September, 1892. He left surviving him these minors, aged 12 and 10 years, respectively. His wife, the mother of these children, had died about two years previous. Before the death of the wife and mother, the petitioner, who is the paternal uncle of the minors, at the request of Manley J. Benton and his wife, took Grace Benton to his home in Wisconsin, and from that time until the present has supported and cared for her. At the time of the father's death, there being no next of kin in Iowa, petitioner took the boy, George O. Benton, to Wisconsin, and into his family, and has ever since supported him. The paternal grandfather of the children lives with the petitioner in Wisconsin. On the 1st day of November, 1892, the petitioner was appointed guardian of the persons and property of said minors by the county court of Trempealeau county, in the state of Wisconsin, and gave his bond as such. His bond, at the time of the filing of the application herein, amounted to the sum of $4,000. Manley J. Benton had a life insurance policy, issued by an Iowa company, for $2,000, $1,200 of which was made payable to Grace and $800 to George O. Benton. This was all, or practically all, the property he left. On the 12th day of November, 1892, E. L, Smalley, of Waverly, in Bremer county, Iowa, upon the petition of one J. R. Smith, was appointed guardian of the property, but not of the persons, of the minors. Smalley afterwards collected the face of the insurance policy, and is now holding the same by reason of his appointment as guardian. The petition in this case was for an order for the transfer of this money to the petitioner, as guardian in Wisconsin, under sections 2269-2271 of the Code. The court, after hearing the proofs, denied the petition, and this ruling is assigned as error.

Code, § 2269, provides: “Foreign guardians of nonresident minors may be authorized by the district court of the county wherein such minor has personal property, to receive the same, upon complying with the provisions of the following sections.” Section 2270: “Such foreign guardian shall file in the office of the clerk of the district court, in the county where the property is situated, a certified copy of his official bond, duly authenticated by the court granting the letters of guardianship, and shall also execute a receipt for the property received by him.” Section 2271: “Upon the filing of the bond as provided by the last section, and the court being satisfied with the amount of said bond, said court shall order the personal property of the minor, to be delivered to the guardian; and the court shall spread the bonds and receipt on its records, and direct the clerk to notify, by mail, the court granting the letters of guardianship, of the amount of property, allowed to the guardian, and the date of the delivery of the same.” The applicant fully complied with the provisions of this section, filed a duly-authenticated and certified copy of his bond given in Wisconsin with the clerk of the Bremer county district court, which bond was for $4,000, and was sufficient in amount, and was ready to execute his receipt for the money as required by the statute. It is claimed by appellee, first, that the petitioner had no standing in court, because he had not been appointed in this state; second, that he was not a foreign guardian of nonresident minors, that the minors were yet residents of this state, and that the appointment of Benton in Wisconsin was without jurisdiction; third, that Benton was not a proper person to have charge and control of either the children or their property.

The first of these claims is answered by the statute itself, which, if not in express terms, by necessary implication, authorizes such a guardian to apply for an order of transfer. With reference to the second, it is a...