In re O'Connell

• Citation: 102 Iowa 355,71 N.W. 211
• Parties: IN RE O'CONNELL.
• Decision Date: 21 May 1897
• Court: United States State Supreme Court of Iowa

102 Iowa 355

71 N.W. 211

IN RE O'CONNELL.

Supreme Court of Iowa.

May 21, 1897.

Appeal from district court, Linn county; William P. Wolf, Judge.

Ellen O'Connell, surviving parent, died January 4, 1895, leaving an only child, George M. O'Connell, eight years old. She left a will, to which was attached, by way of codicil, this request: “I wish it to be understood by the court that it is my desire to have the executors of my last will and testament, Dr. A. H. Johnson and Dr. G. R. Skinner, to be appointed guardian of my son, Geo. M. O'Connel, until he become of age.” Application was made for the appointment of Theresa O'Connell, a sister of deceased, as guardian of the child; also for that of Drs. Skinner and Johnson, and of Anna M. Donahue, another sister. After hearing, the court appointed the latter permanent guardian. Theresa O'Connell and Drs. Skinner and Johnson appeal. Affirmed.Rickel & Crocker, for appellants Skinner and Johnson.

Preston, Wheeler & Moffit, for appellant Theresa O'Connell.

Rothrock & Grimm, for appellee Anna M. Donahue.

LADD, J.

The appeal of Theresa O'Connell may be first considered. The evidence shows that she is unmarried, and her occupation that of a school teacher. She was always on good terms with the child and its mother, but has no affection for him other than that of a near relation. Her employment is not permanent, and existing conditions may reasonably be expected to change. On the other hand, Mrs. Donahue is a married woman, now has custody of the child, treats him as one of her own children, is able to take care for him, and wishes to do so. True, she had at one time some dispute with her deceased sister, but not of such a character as would interfere with the proper nurture and training of this son. Under the circumstances, we think the court rightly permitted the minor to remain with Mrs. Donahue.

2. A more difficult question is presented by the appeal of Drs. Skinner and Johnson. The mother requested in her last will that they be guardian of her son and orally expressed her desire to the same effect, shortly before her death. Testamentary guardianship is not authorized in this state (In re Johnson, 87 Iowa, 130, 54 N. W. 69); but the expressed wish of the parent, and especially when made shortly before dissolution, will influence the court, and, other things being equal, will determine the appointment. 9 Am. & Eng. Enc. Law, 93, and notes. No question concerning the fitness of either Dr. Skinner...