In re Bock

• Decision Date: 23 May 1939
• Citation: 21 N.E.2d 186,280 N.Y. 349
• Court: New York Court of Appeals Court of Appeals
• Parties: In re BOCK.

280 N.Y. 349

21 N.E.2d 186

In re BOCK.

Court of Appeals of New York.

May 23, 1939.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding in the matter of the application of Ruth F. Bock for letters of guardianship of the persons and property of Albert Breitung, York Breitung, and Peter Breitung, infants. From so much of an order of the Appellate Division, 255 App.Div. 862, 7 N.Y.S.2d 598, in which reargument was denied, 256 App.Div. 818, 9 N.Y.S.2d 582, as modified a decree of the Surrogate's Court, denying the application and granting letters of guardianship to Hans Breitung, by granting the application as to the infants' persons and directing issuance of letters to Hans Breitung as to their property only, affirmed the decree as modified, and remitted the proceeding to the Surrogate's Court for issuance of letters as directed, Hans Breitung appeals by permission.

Order reversed, and decree of the Surrogate's Court affirmed. Edmond M. Hanrahan and Edward A. Silliere, both of New York City, for appellant.

Arthur Frank, of New York City, for respondent.

FINCH, Judge.

The question presented upon this appeal is whether the Surrogate may appoint a brother of the decedent guardian of the person of three sons, aged fifteen, thirteen and eleven, as against the application of the natural mother of these infants, under the facts presented upon this application.

Max Breitung and his wife, Ruth, had three sons. In February, 1933, the father instituted a divorce action in Connecticut, and in that action sought custody of the three infant children. The defendant defaulted and a decree of divorce was awarded, including custody of the three children, to the father, with an option for custody in the mother during the summer months. About four months later Mrs. Breitung was married to Douglas S. Bock, who had been a neighbor prior to the institution of the divorce proceeding. Mr. Breitung arranged for his three sons to spend the summers of 1935, 1936 and 1937 in the household of Frederick Van Name upon his farm in Maine. In June, 1936, Mr. Van Name also agreed to take the boys for the following two winters into his household in Bronxville, New York. Mr. Van Name had two boys of his own and the five children have attended the same school in Bronxville. Mrs. Van Name was dead and Mr. Breitung joined with Mr. Van Name in selecting a housekeeper for the home in Bronxville.

On August 19, 1937, Mr. Breitung died. He left a will instructing the care, education and upbringing of the three children to Hans Breitung, his brother. Insurance policies upon his life produced an annual income for their benefit. At the time of the death of their father the children were in Maine, still in the household of Mr. Van Name. They had, therefore, not been with their mother since the divorce in 1933, or for a period of approximately four years. Almost immediately following the death of Mr. Breitung, Mrs. Bock went to Maine and, apparently then for the first time, requested the boys to come and live with her at Port Jefferson. They each refused in turn, and Mrs. Bock returned alone to Port Jefferson. While the children were with Mr. Van Name, both in Maine and in Bronxville, Mr. Breitung visited them, sometimes every day. The uncle, Hans Breitung, intends to move to Bronxville and establish there a home for the boys as members of his household. The Breitung boys prefer to remain in the care and custody of their uncle, Hans Breitung, rather than in the care of their mother, and possess a decided aversion to entering the home of their mother and stepfather.

At the Surrogate's Court, guardianship of both...