Spears v. . Snell

PeaesoN, C. J. This is a proceeding concerning the appointment of a guardian for Cyrus A. Snell, an infant of the age of thirteen years. We think there is error in the conclusion of his Honor upon the facts found, (which the reporter will set out,) and feel confident that he would have given the node of the boy a right to the custody and control of his person rather than the stepfather, which is the effect of the order giving it to the mother, had not his Honor felt cramped by his opinion that in law the mother had a prhoary right. Herein he erred, and' by this he was misled. In fact, he and the Judge of Probate and the counsel of both parties, altogether misconceived the case. The boy had no estate to be committed with his person to the charge of a guardian; he had nothing but his looPy to be put, by indentures of apprenticeship, into the keeping of some fit person who would undertake to educate him and give him a freedom suit and such other more favorable terms as the Judge of Probate, acting in his behalf, could induce the master to agree to. *214 In this contest between the- step-father and the uncle, the interest of the boy seems to have been altogether overlooked. Neither of the contesting parties offered “to educate and maintain the boy for the profits of his estate.” Battle’s Re-visal, ehap. 5, see. 3. (1.) So the boy ought to have been bound as an apprentice. We would then have had the indentures which secure to him maintenance and an education; true, to a very limited extent; but “half a loaf is better than no bread.” Our boy, (I emphasize this, for the courts are the general guardians of all orphans,) is delivered to his stepfather. The poor fellow, after serving until he arrives at the-age of twenty-one, will have nothing to look to except a bond, in the penalty of $300, with condition properly to manage and account for Ins estate as guardian. See order of Probate Judge, which is affirmed by his Honor, leaving it indefinite as to the proper county in which the bond should be given. We have said enough to dispose of the matter; but as it will go back for final action, it is proper to give our opinion upon the several questions made on the argument before us. 1. We think the Probate Judge of the county of Cabarrus has jurisdiction of the matter, which should be entitled “ In re Cyrus A. Snell,” so as to make him the prominent figure, and let his step-father, acting in the name of his mother and his uncle, intervene as secondary characters. Cyrus A. Snell was born in the county of Cabarrus, and has lived there ever since. His mother, supposing her to have any claim to the custody of his person after the age of nineteen, (three years,) had surrendered her claim to the boy’s grand-father, who lived in the county of Cabarrus, and in this manner the boy had acquired a settlement in that county of which it was not in the power of the mother to deprive him, and fix his settlement in the county of Mecklenburg, simply by the fact of her moving into the latter county, especially after she had subjected herself to the control of a second husband. Suppose, by accident or disease, the boy had become decrepid and a county *215 charge, could it be supposed, for a moment, that the accident of her going with her second husband to live in the county of Mecklenburg, when her husband had no homestead or other-fixed estate, would charge that county with his maintenance, tO) the relief of the county of Cabarrus, where he was born and raised and in which he had acquired a settlement ? 2. We think it clear, that the Judge of Probate, finding ha had upon the application of the uncle, improvidently granted to him “letters of guardianship,” as styled in the record* without notice to the mother, of whose existence and residency the application informed him, had power and ought, in the exercise ef a legal discretion, upon the application of the stepfather, acting in the name of his wife, made within reasonable time, to have called in the letters of guardianship, and heard the matter de novo, when all sides could have a showing. 3. We think the boy was a competent witness, and ought' to have been examined in that character. Indeed, we think, being the party mainly concerned, he had a right to make a. statement to the court as to his feelings and wishes upon the matter, and that this ought to have been allowed serious consideration by the court, in the exercise of its discretion, as to the person to whose control he was to be subjected. 4. -It is not necessary to decide whether a mother upon the death of her husband is under a legal obligation to support her child after the ago of nineteen, and is entitled to his services, for in this case, admitting that the mother is pn-morily entitle'/, there are special circumstances to imluce the court in the exercise of a legal discretion, to decide that the boy shall remain with his uncle, with an undertaking for maintenance and education. 1. The boy during a long residence in the family of his grandfather and uncle, has formed attachments and associar tions which he is unwilling to sever. At the age of 13, a minor lias a right to have his wishes and feelings taken into consider atson, whether in the choice of a master as an apprentice, *216 or of a guardian to whom Ms est-tte and person aro to be com-tiriitted, or of a friend wbo, without respect to the want of an estate, will undertake to provide for his maintenance and éducation, to prevent his being put out as an apprentice, as in our case. 2. The mother had separated from the child and subjected Herself to the control of a second husband, thus putting it éut of her power to support the child without subjecting him to. the control of a step-father, which she had no right to do. Consequently she was no longer entitled to the services of the child, and she agrees that it is better for the child to remain with his uncle. 3. The uncle is a man of substance, and offers to provide for the maintenance and education of the boy. 4. “ The step-father ” is un ler no leg il obligation to support the boy, and consequently is not entitled to his services, to say nothing of the fact that the step-father is a man of small éstate, has no land or fixed residence, and moves from place to place as a tenant or cropper. These and the other facts of the case, show beyond all question, that it is for the interest of the boy to remain with his uncle, and in the absence of any positive right, either in the mother or step-father, the court below, in the exercise of its legal discretion, should so order. This opinion will be certified, to the end that proceedings may be had in the court below in conformity thereto. Pee Cueiam. Judgment accordingly.