In re Guardianship of Waite
| Decision Date | 14 December 1920 |
| Docket Number | 33705 |
| Citation | 180 N.W. 159,190 Iowa 182 |
| Parties | IN RE GUARDIANSHIP OF HAROLD WAITE et al |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--R. G. POPHAM, Judge.
ON application, Joseph A. Helmer, on February 21, 1920, was appointed guardian of the minor children of Harry and Mary Frances Waite, deceased. Thereafter, and on March 5th of the same year, Ida I. Waite prayed that he be removed, and that she be appointed guardian in his stead. On hearing, six days later, the previous order was so modified that Helmer was continued as guardian of the property, and Mrs. Waite appointed guardian of the persons. From this order, Helmer appeals.
Affirmed.
Hart & Hart, for appellant.
Henry G. Walker, for appellee.
Harry Waite died, February 16, 1920, and his wife, Mary Frances four days later. Two children, Harold, five years old, and Gertrude, three years old, survived them. On the day following the wife's death, her brother, Joseph A. Helmer, filed a petition with the clerk of the district court of Johnson County, praying that he be appointed guardian of the persons and property of these children, and the clerk issued letters of guardianship to him on the same day. On the 5th of March following, Ida I. Waite, widowed mother of Harry Waite, made application for the removal of Helmer as guardian, and that she be appointed guardian of the children in his stead, and the Johnson County Savings Bank guardian of their property. Hearing was had on March 11th of the same year, whereupon Helmer was continued as guardian of the minors' property, but removed as guardian of their persons, and Mrs. Waite was appointed in his stead. The evidence disclosed that Helmer is a prosperous groceryman, 43 years of age, with a family of wife and 4 children, aged, respectively, 15, 12, 10, and 4 years, and that his widowed mother, 74 years of age, in feeble health, is living with him, temporarily at least. They live in a home of 7 rooms, well located, and with reasonably good educational facilities. His purpose, as stated by himself, is to take these children into his home, and care for and educate them as his own children. He had not consulted anyone, prior to his appointment as guardian, and, when he went for the children where decedents had resided, he was assured that they would be well cared for while there. Upon his telling Mrs. Waite, who was sick and confined to her bed, that he had come for them, she exclaimed:
"Oh, don't do that; Harry has been taken away from me, and Mary is taken away; leave them with me; they are the only thing I have to content myself."
He responded that he would take them to see his mother, and then bring them back, and "let you and Mary take care of them until you get up, or further notice." Mrs. Waite had been sick for some time, and, though but 62 years of age, does not appear to have been in good health; and she was unable to attend the trial. Her daughter, Mrs. Stoltenburg, lives at Kingsley, Kansas, and had assisted in nursing decedents some time before their death. She testified that Helmer told Mrs. Waite, the day after the wife's death, that he was willing that Mrs. Waite be appointed guardian. Helmer denied this. Mrs. Stoltenburg further testified that the first she knew of Helmer's appointment as guardian was when he exhibited his letters of guardianship upon his authority to dictate as to the children's being questioned; that she had arranged, if her mother was appointed guardian, to take Harold with her to Kansas, and rear and educate him as though her own child; that she had been graduated from the academy at Iowa City and attended the State University; that her husband was a graduate of a high school, and a practicing physician; that they had a six-room bungalow, a child's library, a Victrola, a piano, automobiles, and the like, and an only child, a son 13 years of age; that her husband joined her in wishing to care for the child; that they would return him to the guardian whenever required so to do by the guardian or court, should his mother be appointed; and that the mother was satisfied to allow her to have the care and the keeping of the boy. Another sister of Harry Waite's (and there were only three children in the family), Mrs. Spiers, resides at Spearville, Kansas, 23 miles distant from Kingsley. She has two boys, one 9 and the other 11 years of age; had always wanted Gertrude, though Harry would not allow her to take the child, because so far away. She also had arranged with her mother to take Gertrude to her home, and there care for and educate her, as though she were her own daughter. Her husband is a physician, a graduate of a college, and she had taught five years, being a graduate of an academy. They have a home, an Edison, a piano, a children's library, and automobiles. The children had continued in Mrs. Waite's care and custody, up to the time of the hearing.
I. Counsel for appellant insist that Helmer could be removed only for cause shown under Section 3198 of the Code. Though denominated as an application for removal, it was, in fact, a motion for the review of the action by the clerk of court in appointing Helmer guardian. Section 250 of the Code authorizes the clerk to appoint, when not contested, guardians of minors, and Section 251 provides that:
The hearing before the court proceeds as though no appointment had been made, and it is to be confirmed, or another appointed, as shall best serve the interests of the minors.
II. The appellant contends that the court, in appointing Mrs. Waite instead of Helmer, abused its discretion. The finding of the district court, in the selection of a guardian, is entitled to great weight, as the issue is at law, and, if the evidence is in conflict, such finding ought not to be disturbed. Lawrence v. Thomas, 84 Iowa 362, 51 N.W. 11; In re Guardianship of O'Connell, 102 Iowa 355, 71 N.W 211. The character of neither contestant is assailed, and we entertain no doubt as to the good purpose of either to serve the best interests of these children. Each appears to be able to maintain...
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