Estate & Guardianship of Zimmer

Application of Susanna Smith for letters of guardianship of the person of Susanna Zimmer, a minor, The minor is an intelligent girl of about the age of sixteen years, of fair education, and legally competent to nominate her own guardian, subject to the approval of the court: Code Civ. Proc., secs. 1748, 1749. She is capable of expressing an intelligent preference, and the court should consider that preference in determining the question: Civ. Code, sec. 246.

But the court must be guided in so determining by what appears to be for the best interest of the child, in respect to its temporal and its mental and moral welfare: Civ. Code, sec. 246. The nominee of the minor is doubtless a worthy woman, and affectionately disposed toward the child, with whom she has been familiarly associated for many years. *144The minor has been treated by this lady, who is her aunt, as if she were her own child; has lived in her family with the consent of her own parents for several years; and has been educated largely through the kindness, affection and liberality of the applicant and her husband. All of this the minor acknowledges and appreciates; and she desires to remain in the relation she has sustained for so long a period. She manifests no want of affection towards her mother, who is a counter-applicant here, but has an aversion toward her stepfather, her own father being legally separated from her mother, who is married a second time, to the object of this minor’s aversion.

Without considering now the counter-application of the mother, it is sufficient to say that the court considers that with reference to the competency of the nominee of the minor, it does not appear from the evidence to be for the best interest of the child, in respect to its temporal welfare (Civil Code, section 246) to commit her to such custody; and it further appearing from the evidence that the nominee of the minor is a resident of the state of Nevada, having her home for many years in that state, and only awaiting the determination of this application to return thither, the court would not be justified in confirming, even if legally permitted to confirm, the choice of the minor: See Civ. Code, sec. 253, subd. 6. Application denied.

The Wishes or Judgment of a Child of sufficient maturity to realize in a measure his situation cannot, independent of or despite other circumstances, control the court in the determination of his custody: Stapleton v. Poynter, 111 Ky. 264, 98 Am. St. Rep. 411, 62 S. W. 730, 53 L. R. A. 784.