Cook v. Bybee

Bell, J. It was objected, in the District Court, that the appellee, Mary Bybee, could not maintain this suit, in her own name, without being joined by her husband. The whole case was submitted to the judge below, without a jury, and there does not appear to have been any action of the court below, upon the objection, that the husband did not join in the suit; nor is the point made in the assignment of errors. We are of opinion, that the appellee, as the natural mother of the infant, was competent to assert her right to the guardianship of her child, without being joined by her husband, inasmuch as the law provides, that, “the mother,” under certain circumstances, “shall be entitled to the guardianship of her minor children, and shall have the custody of their persons, education, and estates.” It may be true, that where the mother is required to give bond, as guardian, she ought to be joined in the bond by her husband, if she be again under coverture. But if this be so, it does not prevent her from appearing in court, to assert her right to the guardianship of her minor children. [281] In case of the death of the father, the law devolves'upon the surviving mother, not only the guardianship of the persons of her minor children, but also the right to the guardianship of their estates, if any they have. There are thus united in her, the duties of a guardian by nature, and, with some modifications, perhaps, the rights, powers, and duties, of a guardian in socage. It is contended, in behalf of the appellant, that the appellee relinquished her right to the guardianship of her child, and surrendered that right to him. The guardianship which the law devolves upon the mother, in respect to the person and estate of her minor child, is a right, which she may assert; and it is also a trust which the law does not permit her to assign or transfer to another, which she cannot devise, and which is not transmissible by succession. Even, therefore, if it had been the intention of the mother, the appellee in this case, to relinquish the guardianship of her child, and to transfer the guardianship to the appellant, which we do not think is at all clear, the law, in its wisdom and beneficence, would permit her to renounce such an intention, and to resume the guardianship of her child; especially where a subsequent marriage, as in this case, would cause a separation from her child, unless she could be permitted to assert her right to the guardianship. It is true, that there are cases, in which the father of a minor, after surrendering his control of his child’s education, has not been permitted again to assert his right to such control; but those are cases where legacies were given, or donations made by third persons, to the minor, upon condition that the father would relinquish the control of the minor’s education; and where the father had acceded to the conditions imposed. There is nothing in the present case, to place it in the class of cases just mentioned. The right of the appellant, to the guardianship of the minor, in this case, by virtue of the provision of the will of the father of the minor, was lost by the failure of the appellant to appear before the court where the will was probated, and accept of the appointment, and obtain letters of guardianship, within six months [282] after the probate of the will. (O. & W. Dig., Art. 957.) Upon the whole case, we think there was no error in the judgment of the court below, and the same is therefore affirmed. Judgment affirmed.