Sudler v. Sudler

• Citation: 88 A. 26,121 Md. 46
• Parties: SUDLER et al. v. SUDLER.
• Decision Date: 10 May 1913
• Court: Maryland Court of Appeals

88 A. 26

121 Md. 46

SUDLER et al. v. SUDLER.

Court of Appeals of Maryland

May 10, 1913

Appeal from Orphans' Court, Queen Anne's County.

Application by Foster Sudler for appointment as guardian of Laura L Beatty, in which John W. E. Sudler and another filed a petition and protest against the applicant's appointment. From orders dismissing the protesting petition, and appointing the applicant as guardian, the protesting petitioners appeal. Affirmed.

Isaac Lobe Straus, of Baltimore, for appellants.

L Wethered Barroll, of Baltimore, for appellee.

BOYD C.J.

The question in this case is whether the orphans' court of Queen Anne's county had jurisdiction to appoint a guardian of Laura L. Beatty. It was decided as early as Compton v. Compton, 2 Gill, 241, that no appeal will lie from an order of the orphans' court appointing a guardian, when it has jurisdiction to make the appointment and Judge Magruder said: "The orphans' court, in the discharge of this duty, may make an injudicious choice; but it is not probable that this court, without any information to assist them, could exercise such a power more judiciously." Whether or not the court had jurisdiction to appoint a guardian was dependent upon where the infant resided. Section 144 of article 93 of the Code of 1912 provides that whenever a male under the age of 21 years or a female under the age of 18 years acquires or is entitled to property as therein described, "and the said male or female shall not have a guardian appointed by last will and testament, agreeably to law, the orphans' court of the county in which such infant shall reside shall have power to appoint a guardian to such infant until the age of twenty-one years, if a male, and until the age of eighteen, if a female, or married," etc.

On December 10, 1912, the appellee made application to the orphans' court of Queen Anne's county to be appointed guardian of Laura L. Beatty. Arthur E. Sudler, one of the appellants, objected to the appointment, and asked for further time. The court fixed December 18, 1912, as the time for the determination of the matter, at which time the appellants filed their petition and protest against the appointment of the appellee, on the ground that the court had no jurisdiction to make it. They asked leave to offer testimony in support of the allegations of their petition and protest; but the court refused to grant it, and passed orders dismissing the petition and appointing the appellee such guardian. Appeals were taken from those orders.

The petition shows that Laura L. Beatty, who was 14 years and 6 months of age, is the only child of Louis M. Beatty and Mary M. Beatty, his wife; that Louis L. and Mary M. Beatty resided during their joint lives in Queen Anne's county; that at or about the time of his death, which occurred about six years before, Mary M. Beatty removed to and took up her residence and abode in Baltimore city, where she resided until the month of May, 1912, when she removed with her daughter to her farm in Queen Anne's county, where they resided until October 23, 1912, when Mrs. Beatty died intestate; that Mary M. Beatty was a widow at the time of her death, and there is no father or mother of either Louis L. Beatty or Mary M. Beatty surviving. The petition then alleges: "(3) That on the 26th day of October, 1912, after the death of said Mary M. Beatty, the said Laura L. Beatty of her own volition and with the consent of her uncle, said Mary M. Beatty's brother, who resides in Baltimore city, Md., took up her residence, habitation, and abode with her said uncle, said Arthur E. Sudler, and with the desire and intention of making said Baltimore city her permanent residence and domicile. The said Laura L. Beatty now lives and resides with her said uncle, Arthur E. Sudler, in Baltimore city, and the said Laura L. Beatty is going to school in Baltimore city, and it is her expectation and intention to continue to make Baltimore city her home and residence. (4) The said John W. E. Sudler and Arthur E. Sudler are the only surviving brothers of said Mary M. Beatty, administrators of her estate, and are the maternal uncles as aforesaid and next of kin to said Laura L. Beatty." The petition then sets out the reasons why the appellee should not be appointed guardian.

In determining the meaning of the expression in the statute that "the orphans' court of the county in which such infant shall reside," it would not do to simply ascertain where the abode of an infant is; but, as said in 21 Cyc. 24, "although the terms 'residence' and 'domicile' are not in all respects covertible terms, the word 'residence,' as used in the statutes relating to the appointment of guardians for minors, is, according to the weight of authority, to be construed as synonomous with 'domicile."'

It is said in 21 Cyc. 25 that: "The ward cannot himself change his domicile by removal, because he is not sui juris, nor does the removal of the ward to another state or county by relatives or friends in any way affect his domicile." See, also, 15 Am. & Eng. Ency. of Law 35; Woerner's Am. Law of Guardianship, p. 80, § 26. That being so, the fact that it is the expectation and intention of this young lady to make Baltimore city her home cannot alter the situation during her minority.

Again, in 14 Cyc. 843, it is said: "An infant being non sui juris is incapable of fixing his domicile, which, therefore, during his minority follows that of the father, provided such child is legitimate;" and, on page 844: "If the father dies during the infant's minority, the power to fix the domicile devolves upon the mother, who may alter it at pleasure, provided it be without fraudulent motive respecting the succession to the estate of the infant." In 21 Cyc. 25 it is said: "The domicile of the minor for purposes of guardianship is that of its parents or of those standing in loco parentis, even though, at the time of appointment, such minor may be residing in another county or in another state." In 15 Am. & Eng. Ency. of Law, 33, the rule is thus announced: "The domicile of an infant, for the purpose of conferring jurisdiction to appoint a general guardian, primarily arises from the domicile of the father, or, if the father be dead, from his domicile at the time of death. But if, since the father's death, the mother, without fraudulent intent, has removed her residence and that of the child to another jurisdiction, the infant's domicile will be deemed to follow that of the mother." And, on page 35: "Where, however, the parents are dead, or have relinquished the custody of their infant, and it is living with other relatives acting in loco parentis, their residence will be deemed sufficient to confer jurisdiction to appoint a guardian."

The case of Allgood v. Williams, 92 Ala. 551, 8 So. 722 is a leading case, and is often referred to. The language of the statute in force in that state at the time that decision was made was: "Guardians must be appointed for minors under the age of twenty-one years by the probate court of the county in which such minor resides." The court said: "Though the word ' residence' is often used to signify a temporary abode, it is also used to signify a fixed and permanent home. Residence and domicile are not in all respects convertible terms; but, when 'residence' or 'resides' is employed in a statute, relating to succession, grant of administration, and of guardianship, it is generally construed to mean the legal residence, and as equivalent to domicile. Jac. Dom. § 75." In that case the father, whose domicile was in Blount county, took his child to his brother in Morgan county in the fall of 1887, which was shortly before his death. The court said: "The expression of the father of the minor to his brother to take his child and raise her right, made three or four weeks before his death, did not constitute the residence of the brother the domicile of the minor. Therefore the domicile of the father, at the time of his death, determines the jurisdiction of the court to appoint a guardian." The Supreme Court of Alabama, having determined that Blount county was still the domicile of the father, reversed the order of the probate court of that county, which had revoked the letters of guardianship...