Duke Ex Rel. Woody v. Johnston

Clarkson, J. The court below, from the facts admitted and found from the evidence, made the following conclusions of law: (1) That Gladys Duke was and remained domiciled and a resident of Durham County, N. C., and the corpus of the estate was situate in said county. (2) That defendant had no right or authority to disburse the funds in controversy without an order of the court. (3) That Gladys Duke was a ward of the court, under its authority and supervision, and was not liable to the orphanage for her support in the absence of appropriate orders. (4) The orphanage did not make any charge for the support and maintenance of Gladys Duke, and therefore the defendant had no right to' apply her estate for her support. We think the findings were supported by the evidence. The sole question determinative of this controversy is: Was the defendant Joseph B. Johnston’s appointment in Iredell County, N. C., as guardian of Gladys Duke valid? We think not. Gladys Duke’s mother lived in Durham County. The personal property of Gladys Duke was in Durham County. Gladys Duke was domiciled in Durham County when accepted at the Barium Springs Orphanage, at the age of 7 years. She was- committed to said orphanage by the juvenile court of Durham County, N. C., on 20 May, 1922, and remained there until discharged at the age of 16, on 14 June, 1931, when she returned to the home of her mother in Durham, N. C. Defendant, on his own motion, was appointed and qualified as guardian of Gladys Duke in Iredell County, N. C., by the clerk, on 13 July, 1927, the county in which Barium Springs Orphanage is located. N. C. Code, 1935 (Michie), sec. 2150, is as follows: “The clerks of the Superior Court within their respective counties have full power, from time to time, to take cognizance of all matters concerning orphans and their estates, and to appoint guardians in all cases of infants, idiots, lunatics, inebriates, and inmates of the Caswell Training School: Provided, that guardians may be appointed either by the clerk of the Superior Court in the county in which the infants, idiots, lunatics, or inebriates reside, or if the guardian be the next of kin of the infant or a person designated by him or her in writing filed with the clerk, by the clerk of the Superior Court in any county in which is located a substantial part of the estate belonging to such infants, idiots, lunatics, or inebriates.” Under chapter 467, Public Laws 1935, the above from the word “provided” was added to the section. *175 In Thayer v. Thayer, 187 N. C., 573 (574), it is said: “A domicile of choice is a place which a person has chosen for himself, but an unemancipated infant, being non sui juris, cannot of his own volition select, acquire, or change his domicile.” In re Reynolds, 206 N. C., 276 (291). In the present ease defendant acted in good faith, but without authority of law. It is well said that “hard cases are the quicksand of the law.” We must follow the beaten path. For the reasons given, the judgment of the court below is Affirmed.