Petition by Otto Kelsey for a writ of habeas corpus for the purpose of obtaining the custody of Clarence Ward, an infant, alleged to be unlawfully confined, imprisoned, and detained by Frederick D. Green. From a Judgment remanding such minor to the care and custody of Green, petitioner appeals. Affirmed.
The return was as follows: "The respondent, in obedience to said writ, brings the said Clarence Ward into court, and says that he is in no manner, without law or right, confined, imprisoned, restrained, or deprived of his liberty, and further avers with reference thereto as follows: (1) The said Clarence Ward is the son of Ferdinand Ward, now of Geneseo, in the state of New York, and of Ella Ward, the wife of said Ferdinand, and the nephew of the respondent. (2) The said Ella Ward died at Stamford, Conn., on or about March 1, 1890. (3) The said Ferdinand Ward at the time of the decease of said Ella Ward, and for some time prior thereto, was a convict confined in the penitentiary at Sing Sing, in the state of New York; having been convicted in the courts of said state of a felony, and lawfully sentenced to Imprisonment in said prison. (4) From the time of the sentence of
said Ward, as set forth in paragraph 3, until her death, the said Ella Ward and her said son, Clarence Ward, resided in Stamford, in this state; having removed from New York to Stamford with the knowledge and approval of said Ferdinand Ward. (5) The said Ella Ward, at her decease, left a considerable estate, and a last will and testament, by virtue of the provisions of which a trust was created for the benefit of the said Clarence; the income of said estate, or so much thereof as might from time to time be found necessary, to be expended by the trustees for the maintenance and education of the said Clarence until he shall arrive at the age of twenty-one years; the principal to be paid to him when he shall have arrived at said age, or, in case of his decease prior thereto without issue, said income to be paid one-half part to his said father, and the balance to other beneficiaries named in said will. (6) Said will was proved and approved at East Haddam, in the state of Connecticut, before the probate court for said district, and was also proved and approved in the proper tribunal in the state of New York. (7) The trustees named in said will declined to accept said trust, and thereupon the Franklin Trust Company, a corporation located in Brooklyn, New York, was duly appointed trustee under the provisions of said will, both in Connecticut and in New York, accepted said trust, duly qualified in both states, and are now in the discharge of their duties thereunder. (8) To all these proceedings the said Ferdinand Ward was duly made a party, and gave his consent and approval thereto. (9) Upon the decease of the said Ella Ward, the question presented itself as to the proper disposition to be made of the person of the said Clarence, as said the Franklin Trust Company, under its charter, had no power to act as guardian of the person of the said Clarence; his father being then confined in the state prison, and the nearest relatives on the side of the father positively declining to assume any personal care of, or custody of, the said Clarence. (10) it was finally agreed between all the relations upon both sides, including the father, and with the concurrence of the Franklin Trust Company, that said Clarence should be placed under the care and custody of his uncle, the respondent, at Thompson, in this state, and the respondent, without legal action being taken in reference thereto, should assume and thereafter occupy the position of a guardian over the person of the said Clarence Ward. (11) in accordance with the arrangement aforesaid, the said Clarence was forthwith removed from Stamford, Conn., where he was then residing, to the house of the respondent, in said Thompson, and has continued to reside there until the present time. (12) The said Ward was released from state prison in or about 1892. After being so released, the said Ward approved and ratified said arrangement with reference to the custody of Clarence. (13) Some time after the release of the said Ward from prison, he demanded of the respondent the custody of Clarence; but the respondent did not feel authorized to assume the responsibility of disregarding the terms of the arrangement hereinbefore mentioned without the consent and approval of the other contracting parties thereto, and referred the said Ward to such other parties for such consent and approval. (14) The other parties interested in the welfare of the said Clarence as aforesaid declined to consent to the change in the child's status as contemplated by the said Ward. (15) The respondent thereupon suggested that the question as to the right of the said Ward to the custody and control of the said Clarence be referred to the adjudication of the proper court upon the application of the said Ward. (16) The said Ward refused to take any legal action in the matter, but did on the 13th day of September, 1894, acting through his agents thereto by him employed, enter the state of Connecticut and the town of Thompson forcibly, and without prior demand upon the respondent, and, contrary to the wishes of the said Clarence, did attempt to abduct the said Clarence, and remove him from the custody and care of the respondent, and beyond the limits of this state and of the jurisdiction of its courts. (17) Thereupon, on the 8th day of October, 1894, after due hearing had, and upon legal motion thereof, the honorable court of probate for the district of Thompson did appoint the respondent the legal guardian of the person of the said Clarence, which said appointment the respondent accepted, and is now in the discharge of his duties thereunder, the same having never been annulled or set aside." "(21) The said Clarence, ever since the date of his residence with the respondent as hereinbefore set forth, has remained with the respondent of his own free will and accord, and has been supported, maintained, and educated by the respondent under the arrangement hereinbefore stated, and the said Clarence still desires to remain with the respondent. (22) The respondent is the legal guardian of the said Clarence, and as such is entitled to his care and custody, and is desirous of maintaining, supporting, and educating him as aforesaid, and it is for the best interests of the said Clarence to remain in the care and custody of the respondent; and the petitioner is not the guardian, and in no manner entitled to have the care and custody, of the said Clarence."
To this return the plaintiff replied as follows: "(1) Paragraphs 17 and 22 are denied. (2) All the other paragraphs of the return are admitted. Second. And by way of further reply to said return the petitioner says that the residence of said Clarence Ward was not at Thompson at the time of said Green's alleged appointment as his guardian, nor has it ever been at said Thompson, or elsewhere in the state of Connecticut, but is now, and always has been, in the state of New York, and that the probate court of Thompson had not jurisdiction to make the appointment alleged in paragraph 17 of said return. And
the petitioner says that on the 1st day of July, 1895, the residence of said Clarence Ward was, and for a long time previous thereto had been, at Geneseo, Livingston county, in the state of New York, and within the jurisdiction of the surrogate court of said county, and that on that day said court, having jurisdiction therefor under the laws of the state of New York, duly appointed said petitioner to be the guardian of said Clarence Ward, which appointment has never been annulled, and is in full force." The defendant denied the reply.
The court found that the defendant was lawfully...
