Herndon v. Bonner

Anderson, J., after stating the facts as above, delivered the-opinion of the court. The right to the custody of infants having a guardian is fixed by statute in this state, Code 1906, § 2409, which provides that “the guardian of a minor who has no parent shall be entitled to the custody of the minor as well as of his estate, or the court or the chancellor may appoint one person to be the guardian of' the person, and another to be the guardian of the estate of the-minor.” The decree of the chancei’y court appointing Bonner expressly provides that he is to be guardian of the person and estates of his wards. The circuit judge had no power to override the statute and decree of the court. This decree under the-statute fixed the right to the custody of the wards in the guardian, until vacated by the court making it on a proper proceeding for that purpose, which is amply provided for by law. They are the wards of the chancery court, which alone has the power to determine who shall have the custody of their persons and estates. It is insisted that Foster v. Alston, 6 How. (Miss.) 406, is. authority to the contrary. We hold that it is not. The question there was whether the testamentary guardian in Tennessee (the-uncle)- was entitled to the custody of his wards, as against their mother in Mississippi, with whom they were living, and thoroughly capable of having their custody, care, and education. The court refused to recognize the legal right of the Tennessee [332] .guardian, under the laws of that state, as against the right of the mother and the best interest of the wards in this state; Judge ■Sharkey dissenting, in an able opinion. The question here is whether the court in a habeas corpus proceeding will overturn a statute of this state by awarding the custody of the minors to one person when the law says another shall have it, which we Answer in the negative. Affirmed.