Inferior Court ex rel. Pitts v. Cherry

By the Gourt. Starnes J. delivering the opinion. [1.] By analogy to the Common Law rule, ivhich was established in cases of guardianship, in socage, it has been .settled, generally, that a minor may choose his own guardian, at the age of fourteen. (Co. Litt. 123. 1 Black. Com. 461.) We are prepared to admit this rule as of force in our State, with the qualification, that this discretion may be so far controlled by the Ordinary, that he may refuse his sanction to an unwise or improvident selection. [2.] We accordingly think, that the infant, in this case, had the right to make choice of his guardian when he did. This right, however, has not been exercised in the proper way. In such a case, the new guardian cannot be appointed until the letters of the first guardian are revoked. There would be two guardians of the person and property at the same time, each appointed to the exclusive right to controle the same, and by Ordinaries of different counties. This result must ensue, unless the letters of the first guardian are revoked before the other is appointed. If the ward resides in a different county from that in which the guardian, whom he wishes removed, (as in this case,) was appointed and lives, he must bring to the notice of the Ordinary of that county, the fact of his desire to exercise his right, and choose a different guardian, when the first appointment may be revoked, and the guardian of his choice may then be appointed in the county of his residence. The course prescribed is absolutely necessary, in order to prevent a conflict of jurisdictions, of official acts, and of conduct, on the part of the persons appointed. In this view of the subject, David L. Pitts was not properly [596] appointed guardian; nor were the letters of Lemuel Cherry .revoked in the proper way. [3.] We are also of opinion, that in a suit like that at bar, it would he better that some sort of demand should be made by the newly appointed guardian, for a delivery, to him, of the property belonging to the ward. Unless this be done, and refusal ensue, we think there may be difficulty in making proof of a breach of the bond by the defendant, in not delivering the property and accounting'with ■the plaintiff. Judgment affirmed.