Munday v. Baldwin

• Decision Date: 20 November 1880
• Citation: 1 Ky.L.Rptr. 420,79 Ky. 121
• Parties: Munday, & c., v. Baldwin.
• Court: Kentucky Court of Appeals

79 Ky. 121

1 Ky.L.Rptr. 420

Munday, & c., v. Baldwin.

Court of Appeals of Kentucky.

November 20, 1880

1. A guardian is appointed for an infant at the domicile of her father at his death in Kentucky. The infant is taken out of this State without the consent of the guardian, and carried to Texas. A guardian selected by her in Texas after she is fourteen years of age cannot sue the guardian in Kentucky for rents of the infant's lands, collected by him here.

2. The infant having a guardian in Kentucky is not a non-resident of the state, as she could not consent to leave it, and the court in Texas had no jurisdiction to appoint another guardian, or to displace the guardian in this state. The infant's domicile is in this State.

APPEAL FROM MERCER COURT OF COMMON PLEAS.

C. A. &amp P. W. HARDIN FOR APPELLANT.

1. The court erred in dismissing appellant's petition.

2. After arriving at fourteen years, the infant had the undoubted right to choose a guardian in Texas.

P. B THOMPSON, JR., FOR APPELLEE.

The infant acquired no domicile in Texas by being taken there. She could not legally consent to the removal from Kentucky and, as a result, the court in Texas had no jurisdiction to appoint another guardian, although he was chosen by her. His sureties would not be bound for the money if it were recovered in this suit. (Story's Conflict of Laws, sec 504; Davis v. McFeet, MS. Opin., October, 1873; Grimes v. Clay, 4 Litt., 6.)

OPINION

COFER CHIEF JUSTICE:

Thomas H. Munday died in 1863, domiciled in Mercer county, in this State. At the time of his death he was a widower, having one child, then only a few months old. By his last will and testament, he gave all his personal estate and the care and custody of his infant child to his maiden sister, Sarah E. Munday.

Miss Munday and her mother seem to have resided together, and the child remained with them up to Miss Munday's death, and for some time afterward remained with the grandmother.

In the meantime the appellee, a maternal uncle, was, by the Mercer county court, appointed guardian of the child, and took possession of and rented a small tract of land she inherited from her mother.

In 1875 the wife of the appellant, a paternal aunt of the child, and who resided with her husband in the State of Texas, came to Kentucky, and when she returned the child and its grandmother went with her to that State. In 1876, the child, having reached the age of fourteen, went into the county court of Dallas county, Texas, and chose the appellant as guardian of her person and estate, and he qualified and gave bond as such.

Shortly thereafter he brought this suit in the Mercer court of common pleas against the appellee to recover the sum of more than four thousand dollars in his hands, the proceeds of the rent of the ward's land.

The appellee defended on the ground that the ward had been removed from the State without his consent, and that her...