In re the Guardianship of Winkleman

By the Court, Whitman, C. J.: On the fifth of February, 1874, Winkleman died intestate. On the seventh of the same month respondent petitioned to be appointed guardian of Mary, the infant daughter of intestate. On the tenth of the same month his petition was granted without notice to the relatives of the deceased, or to the persons under whose care the infant was at the time of her father’s death. From this order this appeal is taken, as maybe done under section 299 of the “act to regulate the settlement of the estates of deceased persons.” Comp. Laws, 192, Sec. 779. The action of the court in appointing respondent was at least gravely irregular, and must be reversed; and it is so ordered. Appellant himself seeks the guardianship, showing as claim therefor that he is a distant relative of the infant, and the only one, save his brother, in the United States; a resident of the county where the infant and her property are; of good character; capable of managing the estate; presenting sufficient sureties; and backed by the following letter of absolute and touching confidence, penned by intestate on the day of his death: “Genoa, February 5, 1874. “A letter to Chris. Badenhoof. “Dear Chris: In case that I should die, you shall become guardian for Mary. Do the best that you can. Sell everything and send it to the grand-parents, and see that the little one shall not afterwards remain in the country. You take her with you to Germany. She has money enough, if she only gets a good education. * * * * * * The old Bowers [307] have not received anything yet. My things you and the old man can take. The papers are all in the trunk. I can’t write anymore. Do the best you can, with God’s assistance, for little Mary. “H. WlNKLEMAN. <<***#* The papers are all in the trunk. * * * * * Most of the things are on the ranch yet, and the keys to them are here in the trunk. See to it that the keys go into no other hands but Badenhoof’s ; deliver to him the letter and the keys.” The portions omitted, though only touching minutiae of business, still bear out the perfect trust with which the intestate resigned all of earth to the care of appellant. That in the face of the proven facts and this letter, in itself absolutely conclusive save under some extraordinary adverse showing, his petition was denied, -would be a matter of surprise, were' it not that the transcript does not purport. to contain all the evidence. So when the district court, though presenting no basis therefor, finds, touching appellant, that he is “not a proper person to have the custody of said minor or the management of her estate;” it follows that this Court must presume that there was testimony undisclosed by the record, influencing the district court to its decision. Under such presumption it also follows that the order denying appellant’s petition must be affirmed. It is so ordered, without prejudice however to a renewal of his application. It is unnecessary to discuss the peculiar proceedings under which an attempt was made to ratify respondent’s appointment; as the foregoing decision disposes of its subject matter; and in any view it was absolutely null.