Marheineke v. Grothaus

• Decision Date: 31 October 1880
• Parties: MARHEINEKE, Plaintiff in Error, v. GROTHAUS.
• Court: Missouri Supreme Court

72 Mo. 204

MARHEINEKE, Plaintiff in Error,

v.GROTHAUS.

Supreme Court of Missouri.

October Term, 1880.

Error to Franklin Circuit Court.--HON. A. J. SEAY, Judge.

REVERSED.

T. W. B. Crews and W. C. Bragg for plaintiff in error.

1. The parents of the minor were domiciled in St. Louis county; their home was the minor's; by no act of hers could she have acquired a different one, for she was incapable by reason of her infancy, of exercising a discretion, and absence or removal by constraint would not have changed her legal status. Forbes v. Forbes, 18 Jur. 642; Story Conf. Laws, § 46. She could have lost this domicile in but one of two ways: First, By the choice of a guardian resident of another county by the minor, she being fourteen years of age; Wag. Stat., p. 674 §§ 13, 14, 15; and, Secondly, By the death of the minor; not by the death of the guardian.

2. The practice of the circuit court would lead o inextricable confusion in all matters pertaining to guardianship and to administration. The rightful jurisdiction of the probate court of St. Louis county, a court identical in its nature, authority and extent, had long before attached to the party and the subject matter, and the law required it to retain such jurisdiction for all purposes within the scope of its duties, to finish up the work it had begun Ober v. Gallagher, 93 U. S. 199; Windsor v. McVeigh, 93 U. S. 274; Maxsom v. Sawyer, 12 Ohio 206. Its jurisdiction is specially conferred by statute, and it could not abdicate it if it would. The order of appointment and the proceedings in the probate court of Franklin county were void. Lacy v. Williams, 27 Mo. 280; 2 Kent Comm., 226 notes (12 Ed).

T. A. Lowe and J. C. Kiskaddon for defendant in error.

The domicile of the parents is the domicile of their minor child. The infant cannot change its domicile of its own volition. Schouler's Dom. Rel., (2 Ed.) 312, 412; Story Conf. Laws, (3 Ed.) §§ 45, 46; Wharton Conf. Law, § 41; Wag. Stat., 599, § 60. The probate court of the county in which a minor has its domicile is the only court which has jurisdiction to appoint a guardian or curator. Wag. Stat., 672, §§ 3, 4, 7; Lacy v. Williams, 27 Mo. 280. The parents of the minor, in the cases at bar, having lived and died in St. Louis county, the probate court of that county was the proper court to appoint the first guardian. But he had the power to change his ward's domicile. Schouler's Dom. Rel., (2 Ed.) 452; Anderson v. Anderson, 42 Vt. 350. When he removed her from St. Louis to Franklin county and fixed her place of abode with his own family, he thereby changed her domicile, and such domicile continued to be in Franklin county until the death of the guardian; and, as the ward was a person not in sui juris, she could not change her domiclle back to St. Louis county after her guardian's death. It follows, that, the minor being without a guardian, the probate court of Franklin county was the only court having jurisdiction to appoint one. The court which appointed the first guardian may not always appoint his successor. Brown v. Lynch, 2 Bradf. 214.

NAPTON, J.

These two cases depend on a single question common to both. That question is, whether Frederick Koehring, appointed guardian of Maria Marheineke by the probate court of St. Louis county, or Wm. Kelso, appointed curator of the estate of the infant by the probate court of Franklin county, is entitled to the property sued for. The circuit court decided that the appointment of Kelso was valid, and consequently that of Koehring invalid, and, therefore, that the former was entitled to recover the estate of the minor. The facts are undisputed. Upon the death of the father and mother of Maria, both residents of St. Louis, her grandfather, John H. Koehring, was appointed her guardian and curator, by the probate court of St. Louis. He was a resident of Franklin county, though the father and mother of Maria lived and died in St. Louis. As the child's domicile was in St. Louis, no objection is raised to this appointment--it was unquestionably valid, and there was no objection in our laws to the guardian living in another county. Whether the probate court of St. Louis, which made this appointment was apprised of the fact that Koehring, her grandfather, lived in the adjoining county of Franklin, does not appear. That the appointment was a judicious one, is evident, and no question is raised in regard to its propriety. Very soon after this appointment John A. Koehring, who had removed the child to his home in Franklin county, applied to the pro bate court of St. Louis to have his guardianship removed to Frankin, for convenience to him, but the probate court of St. Louis declined to accede to this request, and the matter was finally abandoned. After two or three years, the guardian, Koehring, died, and the Franklin county probate court appointed Kelso her guardian and curator. About the same time the probate court of St. Louis county appointed the nephew of the former guardian and uncle of the minor, Fred Koehring, guardian and curator, and the only question in the case is, whether the first appointment or the last shall be recognized as proper. The appointment of Kelso as guardian was abandoned and rescinded, but he was still retained as curator of her estate.

The power of the Franklin county probate court is based on the ground that the domicile of the infant was changed. It is conceded that her domicile was St. Louis when the appointment of John H. Koehring, her grandfather, was made, and that the appointment was a judicious one, though said Koehring resided in Franklin county. The said Koehring took the young...