In re Phillips
| Decision Date | 07 June 1943 |
| Docket Number | No. 3.,3. |
| Citation | 9 N.W.2d 872,305 Mich. 636 |
| Parties | In re PHILLIPS. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Proceeding in the matter of Eva Phillips, a minor. From a judgment of circuit court affirming an order of probate court denying minor's petition nominating minor's mother, Margaret Phillips, as her guardian, Margaret Phillips appeals.
Judgment affirmed and cause remanded to probate court for further proceedings.
Appeal from Circuit Court, Wayne County; Lila Neuenfelt, judge.
Before the Entire Bench.
Gvazda & Shere, of Detroit, for appellants.
Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Daniel J. O'Hara and Frederick Colombo, Asst. Atty. Gen., for appellee State.
James H. Saperstein, of Detroit, for appellee Ernest Phillips.
Eva Phillips, a minor of the age of 18, nominated her mother, Margaret Phillips, as her guardian. As the mother was not a citizen of the United States, the probate judge, because of the provisions of section 27 of chapter IV of Act No. 288, Pub.Acts 1939, the Probate Code (Stat.Ann. § 27.3178 [278]), denied her petition and appointed another. This section reads: ‘It is hereby declared to be the public policy of this state to require that all persons acting in a representative capacity under appointment of a probate court, as fiduciary, shall at all times be amenable to process issued out of the courts of this state, and to that end no person shall hereafter be deemed suitable and competent to act as a fiduciary, who is not a resident of this state and a citizen of the United States: Provided, That nothing herein shall be construed to limit the power of the court to appoint any bank or trust company authorized to do business in this state.’
An appeal was taken to the circuit court on an agreed statement of facts. The circuit judge sustained the constitutionality of the foregoing section of the statute and affirmed the order of the probate court.
It is now argued that the section of the statute in question violates the ‘equal protection’ clause of the Fourteenth Amendment to the Constitution of the United States in that it is arbitrary class legislation, which denies the right of guardianship to an alien; that it is unreasonable and discriminatory to deny the right of guardianship to a resident alien while permitting a resident citizen or a foreign bank or trust company, doing business in this State, to act as guardian. It is also claimed that the statute violates section 2 of Article III of the Constitution of the United States and Federal statutes enacted thereunder, by depriving an alien minor of the right to prosecute a cause of action in the courts of the United States.
The record does not disclose that the minor in the instant case intends to bring any suit in the Federal court, and we must pass this point until a proper cause involving that issue is presented, as plaintiff's claim in this respect is wholly anticipatory. Sullivan v. Michigan State Board of Dentistry, 268 Mich. 427, 256 N.W. 471.
The contention that an arbitrary discrimination is set up in the statute by permitting ‘any bank or trust company authorized to do business in this state’ to act as guardian and thus permit guardianship by foreign banks and trust companies is unsound, because foreign banks and trust companies are not authorized to do business in this state.
The legislative purpose declared in the act is that fiduciaries ‘shall at all times be amenable to process issued out of the courts of this state.’ The Fourteenth amendment is not violated by a reasonable classification, Little v. American State Bank, 263 Mich. 645, 249 N.W. 22, and the law is well settled that alien race and allegiance in some instances bear such a relation to the legitimate object of legislation as to be made the basis of a permitted classification. State of Ohio ex rel. James Clarke v. Alfred F. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115.
Appellant cites Estate of Tetsubumi Yano, 188 Cal. 645, 206 P. 995, as persuasive authority that the instant statute is invalid. The statute in question in the Yano case forbade the appointment of any alien not eligible to citizenship as guardian of a minor. Such a discrimination is not found in the Michigan statute in question.
The Attorney General cites as persuasive authority the case of Re Guardianship of Frank T....
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