Spears v. Snell

• Decision Date: 31 January 1876
• Court: North Carolina Supreme Court
• Parties: J. F. G. SPEARS and wife v. R. L. SNELL.

74 N.C. 210

J. F. G. SPEARS and wife

v.R. L. SNELL.

Supreme Court of North Carolina.

January Term, 1876.

Battle's Revisal, chap. 5, sec. 3 provides: “The Judges of Probate in their respective counties shall bind out as apprentices,” all orphans whose estates are of so small value, that no person will educate and maintain them for the profits thereof.

Therefore, where the uncle of an orphan was, upon petition, without notice to his mother, appointed guardian, and subsequently the mother, who had again married, filed a petition praying that the order of appointment be revoked and that she be appointed guardian; and upon the hearing it appeared that the orphan's estate was very small, and neither of the parties offered to maintain and educate him for the profits thereof: It was held, that the court below erred in revoking said order and appointing the petitioner guardian, upon her filing bond as required by the court; and that the orphan should have been bound out as an apprentice.

The Probate Court of the county in which such orphan has acquired a settlement has jurisdiction of the proceeding, which should be entitled In re A. B. &c.

The Probate Judge had authority and ought, in the exercise of a legal discretion, upon the application of the step-father, acting in the name of his wife, made within a reasonable time, to have revoked the order appointing the uncle guardian, without notice to the mother, and heard the same de novo.

The boy was a competent witness, and ought to have been examined in that character, and his feelings and wishes ought to be allowed serious consideration by the court, in the exercise of its discretion as to the person to whose control he was to be subjected.

This case was an APPEAL from the decision of his Honor, Schenck, J., affirming his judgment of the Probate Court of CABARRUS county, appointing the plaintiff guardian of one C. A. Snell, an orphan. The case was heard at Chambers, June 19th, 1875.

The following are the facts, as found by the Probate Judge:

“J. F. G. Spears and his wife, Margaret, applied to the court, upon affidavit, to revoke the letters of guardianship heretofore issued to R. L. Snell, over the person and estate of Cyrus A. Snell, a minor, and to appoint the applicant, Margaret Spears, guardian of said minor. The said Spears and wife are persons of good character. The said Margaret is the mother of Cyrus A. Snell, by a former marriage. Cyrus is in his thirteenth year. He was born at his grandfather's (Elias Snell,) now deceased, and has lived with and been raised by him. That his grandfather died during the year 1874.

Margaret Spears lived with her father-in-law some three years after the birth of her said child, when she went to live with her father, leaving the child with his grandfather at the request of the grandfather, who begged that he mignt keep him.

J. F. G. Spears intermarried with Margaret Spears about seven years since, and after her marriage she applied for her son, but the old man persuaded her to let him keep him. The said Spears and his wife own very little personal property, and no real estate. They have three children. Spears is in debt.

The defendant, Robert L. Snell, is a man of good character, is the owner of about $1,200 worth of real estate, and is in comfortable circumstances, is a resident of this county. He resided with his father up to the time of his death, and managed his affairs. Said Robert Snell sent the said Cyrus to school for six months, and is much devoted to him. That said Robert has been married for ten years, and has no children.

After the death of his father, Spears and his wife went to the defendant for the minor, and the defendant asked the child if he desired to go with them, when he cried and said he did not. The defendant thereupon refused to allow the plaintiffs to take him without his consent. The defendant applied to this court for the guardianship of said child, without giving notice to his mother.

Since the commencement of this proceeding, the plaintiff, Spears, stated that he wanted the boy to work for him, but that he was angry at the time. He said the plaintiff, Margaret, stated that she thought it best for the child if he were to remain with his uncle Robert.

The plaintiffs live in the county of Mecklenburg, having moved there two years since.

The following is the affidavit upon which the letters were granted to the defendant, and the court finds that the facts therein alleged, are true:

Applicant R. L. Snell makes oath that he is the uncle of said minor; that said minor is in his thirteenth year; that said minor has been living with applicant all his life; that said minor's father is dead and his mother is married again, and is living in another county; that said minor has an estate of about two hundred dollars.

The defendant proposed to examine the minor, Cyrus, as a witness, when the plaintiff objected on the ground that it was against the policy of the law. The court sustained the objection, and the defendant excepted.

Upon the foregoing facts, it is the opinion of the court that the mother is entitled to the guardianship, and that as the letters were granted without notice to her, it is ordered that the said letters of guardianship granted to R. L. Snell on the 4th day of August, 1874, be revoked, and that letters of guardianship of the person and property of the said Cyrus A. Snell, a minor, be granted to Margaret Spears upon her entering into bond, in the sum of $500, with justified sureties.

From the judgment of the court, the defendant appealed to the Superior Court.

The case was heard on appeal by his Honor, Judge Schenck, at Chambers, in Charlotte, on January 3d, at 1876, when the following judgment was rendered; that the judgment of the Probate Court revoking the letters of guardianship heretofore issued to the defendant as guardian of the person and estate of Cyrus A. Snell, be affirmed.

And adjudged further: That Margaret Spears, the mother of said Cyrus A. Snell, is primarily entitled to the guardianship of the person and estate of said Cyrus, and the Probate Court of the proper county will appoint her accordingly, on her giving bond and security required by law.

From the judgment of the Superior Court, the defendant appealed.

Montgomery, for the appellant .

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