Henderson v. Harper

Sherwin, J. In April, 1898, the appellee herein filed, in the district court of Clarke county, a petition asking for the appointment of a guardian of the estate of J. M. Holcomb, who, it is alleged, was a person of unsound mind owning property in said county. In July, 1898, the appellant filed an application in which she set forth her appointment as the guardian of J. M. Holcomb in the state of Nebraska in April, 1898, and asked that his personal property then situated in Clarke county be transferred to her. Her application was denied, and the court appointed a permanent guardian, as prayed by appellee. Both parties concede the mental disability of J. M. Holcomb from birth. The appellee is a sister by adoption; the appellant is his stepmother, to whom his father was married in 1881. In 188^ his father died, and in March, 1897, the appellant married her present husband, David Harper. J. M. Holcomb lived with his father, Cyrus Holcomb, and the appellant up to the time 527 of his father’s death. After that, and np to the time of her marriage in 1897, he resided with appellant on property left by his father1, in which, as we understand it, both had an interest. Immediately after her marriage to Mr. Harper, in 1897, appellant moved tb Nebraska, to his home. J. M. Holcomb went with her, and has since remained there. Previous to their removal to Nebraska, no guardian had ever been appointed for J. M. Holcomb. He had joined appellant in the conveyance of property, as we gather from an imperfect record, in which his interest was one thousand dollars. Mrs. Harper collected three hundred dollars of this money, and the remaining seven hundred dollars is all the property he has in Clarke county, and is the sum the appellant asks to have transferred to her under section 3216^ of the Code, which says: “Foreign guardians of nonresidents may he authorized by the district court, or judge thereof, of the county wherein such ward has personal property, to receive the same upon complying with the provisions of the following sections.” Section 3217 provides for the filing of a certified copy of the bond given in the state of Nebraska, which was done. Section 3218 provides: “Upon the filing of the bond as provided and the court or judge being satisfied with the amount thereof, it shall order the personal property of the minor to be delivered' to the guardian, and the clerk shall spread the bonds and receipt upon the records, and notify by mail the court granting letters of guardianship, of the amount of property allowed to the guardian and the date of the delivery thereof.” As we have already seen, J. M. Holcomb has been a member of the apuellant’s family since her marriage to his father, in 1881, and ten years of this time has been since his father’s death. The interest of the appellee' in his welfare seems to have arisen recently, and, in fact, since his removal to Nebraska; for during the period subsequent to his father’s death she does not appear to have been in any way concerned about his person or property. No substantial reason is shown why the appellant 528 should not care for his property as well as his person. He has long been a member of her family, and, in fact, has never had any other home than with her since her marriage to his father, twenty years ago. When she became a resident of Nebraska, in the spring of 1897, he went there with her, and as a member of her family. She may be said to stand in the position of loco• parentis to him, and her domicile is his domicile. Schouler, Domestic Relations, section 230. The probate court of Nebraska had jurisdiction to appoint a guardian for him in| that state, and under the rule announced In re Benton, 92 Iowa, 202, we find no reason in the record for refusing the transfer of his property to the foreign guardian. It is contended, however, that his estate will be lost to him if transferred to the appellant; but, as was said in the Benton case, supra: “We do not regard this as a material point,” for a certified copy of the bond filed by the guardian in Nebraska was filed in the district court of Clarke county, “and appears ample to protect the ward’s interests.” We think the fund in question should have been transferred to the appellant guardian as prayed. — Reversed.