In Re Logan's Estate

I do not agree with the conclusion reached by the Chief Justice. The concluding part *Page 447 of the proviso in the statute (Act No. 288, chap. 3, § 10, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 16289-3(10), Stat. Ann. 1941 Cum. Supp. § 27.3178 (210)]) now definitely precludes transfer of the guardianship from the guardian already appointed by the court to the testamentary guardian named in the will. This part of the proviso, separated from the previous language by a disjunctive "or," is as follows: "Or when a citizen of this State shall have lawful custody of an orphan child or children, and shall have been appointed guardian thereof by the probate court of the county where said child or children reside, it shall not be competent by will to transfer such control from such citizen or from the guardian so appointed to the testamentary guardian, and all wills heretofore made shall be subject to the provisions of this section." In the situation before us, a citizen of this State has lawful custody of an orphan child, Norman Logan. This citizen (one Victor L. Hicks) has been appointed guardian thereof by the probate court of Wayne county where the child resides. The statute declares that under these circumstances it shall not be competent by will to transfer such control from the guardian so appointed to the testamentary guardian. The statute was so construed by the court below and the order must be affirmed, with costs to appellee. NORTH, STARR, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred with BOYLES, J. WIEST, J., took no part in this decision. *Page 448