Macready v. Wilcox

Park, J. The judge of probate for the district of Enfield appointed the respondent guardian of the minor children before the present proceeding was instituted, and it is difficult to see why he is not entitled to their custody. It is provided by statute that “.the courts of probate in their respective districts shall have power to appoint guardians to all minors, under the age for choosing guardians,, who have no father, guardian or master.” These children are under the age for choosing a guardian and have no lather or master, and unless the relator can make it appear that they have a guardian within the meaning of the statute, it follows that the court of probate had authority to appoint the respondent. It is said that the mother of these children was their natural guardian when the appointment of the respondent was made ; but it is clear that the statute has reference to a guardian appointed by the court of probate, for if the word “ guardian,” as used in the statute, was intended to embrace all kinds of guardians at the common law, there was no [328] necessity for its using the expression “ no father,” for it is every where held that a father is the natural guardian of his minor children. This view of the statute was taken by the court in the following cases. Penfield v. Savage, 2 Conn., 386 ; Kline v. Beebe, 6 id., 494; Selden’s Appeal from Probate, 31 id., 548 ; 1 Swift Dig., 48. It will be conceded that a guardian duly appointed is in loco parentis, and is entitled to the custody of his ward. Rev. Stat., 1866, p. 88 ; 1 Swift Dig., 48 ; Penfield v. Savage, supra; Kline v. Beebe, supra; Selden's Appeal from Probate, supra; Holyoke v. Haskins, 5 Pick., 26 ; Commonwealth v. Hammond, 10 id., 274; Commonwealth v. Aves, 18 id., 225 ; Commonwealth v. Taylor, 3 Met., 72; 1 Bla. Com., 460 ; King v. Isley, 5 Ad. & El., 447. A recent case in Massachusetts, (Curtis v. Curtis, 5 Gray, 535,) is similar in all essential particulars to the one in question, with the exception that in that case the proceeding was brought against the mother of the minor. The court held that the mother was either bound by the contract she had made, or was estopped from claiming the custody of the minor; and the minor was consequently discharged. We do not place the decision of this cáse upon the same ground, although it would seem to follow that if the mother in that case was estopped by the contract she had made from setting up her right to the custody of the minor, the same result would follow in the case under consideration. We place our decision upon the ground that whatever may be the right of the mother to the custody of these children, they are by the statute subordinate to those of a legally appointed guardian. It is further claimed by the relator that the decision of the court was founded upon discretion, and is not therefore the subject of review. It is true that in cases of this description the interest of minors is to be regarded, and in certain extreme cases it may be that the court has the discretionary power to act or not; but there is no law or practice that will justify a court in taking a ward from the care and custody of his legally appointed guardian, where his wants are carefully [329] provided for, and bestow such custody upon one who has at most an inferior right to it. It is further claimed that cases of this description are not the subject of review, from the fact that the delay occasioned thereby is in conflict with the spirit of the provision of the constitution of the United States which declares that “ the privilege of the writ of habeas corpus shall not be suspended unless when in case of rebellion or invasion the public safety may require it.” The language is, “ the privilege of the writ shall not be suspénded,” that is, the right to the writ, the privilege of having it issued, and the case heard and determined, shall not be suspended. The constitution has reference to a state of things in which the courts of the state, and its judges in vacation, have no power to apply the remedy of habeas corpus, for its operation is suspended, is in abeyance, so to speak, and the citizens of the state therefore can not resort to this mode of testing the legality of imprisonment when they are subjected to it. It has no reference to reasonable delay that may be occasioned in the disposition of such cases. It might be urged with more propriety that the law authorizing a review of other cases tried in the court below, is in conflict with another provision of the constitution, that declares that “ right and justice shall be administered without delay.” ‘ We think there is manifest error in the judgment complained of. ■In this opinion the other judges concurred; except Carpenter, J., who having tried the case in the court below did not sit.