Jenkins v. Clark

• Decision Date: 19 March 1887
• Citation: 32 N.W. 504,71 Iowa 552
• Parties: JENKINS, BY HER GUARDIAN, v. CLARK.
• Court: Iowa Supreme Court

71 Iowa 552

32 N.W. 504

JENKINS, BY HER GUARDIAN,

v.CLARK.

Supreme Court of Iowa.

March 19, 1887.

Appeal from district court, Cass county.

This is a proceeding by habeas corpus to determine the right to the custody of May Jenkins, who is a minor and an orphan. The controversy is between the guardian and the defendant, who is an aunt of the minor. The district court awarded the custody of the child to the guardian. The defendant appealed.R. G. Phelps, for appellant.

L. L. Delano, for appellee.

REED, J.

When this proceeding was instituted, May Jenkins was about six years old. Her parents were Benjamin F. and Josephine Jenkins. Her father died in December, 1882, and her mother in the following October. They had resided for many years in Audubon county, and she was born in that county. They left surviving them six children, all of whom are minors. Benjamin F. Jenkins left an estate consisting of a valuable farm, and personal property of the value of $10,000. John T. Jenkins, the present guardian, is a brother of Benjamin F., and he was administrator of his estate, and the administration has been fully closed. Josephine Jenkins executed a will before her death, by which she devised all of her property to her children. In this will she nominated John T. Jenkins as executor; and, when the will was admitted to probate, he qualified and entered upon the duties of the trust. The will contains the following clause: “It is my further desire that John T. Jenkins take Olive Jenkins, Charles W. Jenkins, and Hayden Jenkins; Mary Sheer take my daughter Maggie Jenkins; Eliza Clark take May Jenkins; Laura Gilbert take my daughter Pearl Jenkins,-- and raise and care for each and all of said children as if they were their own.” The defendant is the Eliza Clark mentioned in the clause, and she and Mary Sheer and Laura Gilbert are sisters of Mrs. Jenkins. The will was executed but a few days before Mrs. Jenkins died. At that time, Mrs. Clark resided in Dakota territory, but during the last sickness of Mrs. Jenkins she was present with her, and assisted in nursing and caring for her. Soon after the death of Mrs. Jenkins she returned to her home, taking May with her. Some time after that, John T. Jenkins was appointed guardian of the property and persons of all the children by the circuit court of Audubon county. A short time before this proceeding was instituted, Mrs. Clark came to Iowa on a visit bringing May with her. It appears that a doubt had arisen as to the validity of the action of the court in appointing a guardian of her person, such doubt arising out of the fact that she was absent from the state when the appointment was made, and the guardian accordingly, after she was brought back to the state, applied for and obtained a second appointment as guardian of her person, the appointment being made by the same court. At the time this order was made, however, the child was in Cass county, and she had not then been in Audubon county since her return to the state.

The first question which arises in the case is whether the guardian, by virtue of his appointment, is entitled to the custody of the child as against the defendant. In determining this question it is necessary to consider the relation which each of the parties bears to the child. It is insisted that the action of the circuit court of Andubon county in making the appointment of a guardian of the person is invalid, for the reason that the child was not within the jurisdiction of the court when either of the orders were made. But we think this position cannot be sustained. The law undoubtedly is that the proper court at the place of domicile of the child has jurisdiction of the matter of the guardianship of his person. A person may have a domicile at one place, while he is a resident of another. Love v. Cheny, 24 Iowa, 204. Now, the domicile of a child is to be...