Copp v. Copp

It appears that Langdon Copp, father of the ward, by his last will appointed the appellant to be her guardian, directing him to support, maintain and educate her in his family till she should attain to the age of twenty-one years.

The common law made various provisions for the tuition and protection of infants, and the care of their *286estates, but did not recognize tbe right of a parent to make any testamentary disposition of the guardianship of his children. Long after the power of disposing of property by will had been established by various' statutes, that of 12 Car. H. provided that a father might appoint a guardian or guardians, who should have the control of the persons and estate of his children till the age of twenty-one years. The power thus given was so ample, that whenever it was exerted it wholly superseded the claims of the various persons entitled by the common law to any participation in the control of the person or estate of the infant, and was in fact regarded as almost coextensive with that of the parent himself.

The statute of 12 Car. II. has been adopted in this State. Without adverting to the evidence of that fact, which is derived from the common custom of appointing guardians by will, the validity of these appointments has been recognized by the courts and by the legislature.

In the case of Noyes v. Barber, 4 N. H. 406, it was plainly admitted; and in Balch v. Smith, 12 N. H. 437, the subject was fully examined, and the point expressly ■decided. We must, therefore, conclude that the appellant was the lawful guardian of the minor, Elizabeth Adelaide Copp, at the time of the appointment of the appellee by the judge of probate to the same office.

The two offices being totally inconsistent with one another, the question arises, whether the judge of probate had the power to make the appointment. By the statute (Rev. Stat., ch. 150, sec. 1) from which the power of the judge to make such appointments is derived, it is provided that the judge may appoint a guardian to any minor, “whenever there shall be occasion.” Such occasion can hardly be said to exist while a guardian is already in the exercise of all the power which the judge could confer upon another ; and the law cannot be construed to intend that such a conflict of powers and duties should arise as is suggested.

*287Nor does the mere appointment of the guardian by the judge of probate vacate the office and authority of the testamentary guardian. It has been said, indeed, that the court of chancery has no power at all to remove a testamentary guardian,-although it may exert that control over his acts which may be found necessary for the benefit of the ward. But the contrary, and, perhaps, the better opinion has also been held. Goodall v. Harris, 2 P. W. 561; ex parte Crumb, 2 J. C. R. 439 ; ex parte Andrews, 1 J. C. R. 100. In this State the statute seems to have made perfect provision (Rev. Stat., ch. 150, sec. 29) for the removal of guardians, “ upon petition and after due notice.” It will not, therefore, be intended that the high power of removing a guardian whom the father has appointed to succeed him in the custody and education of his child — a power which, as has been said, has been declined by the court of chancery — may be exercised by the judge of probate without the ordinary formalities at least, and without the ordinary opportunity being afforded to the parties interested to appear and protect their own rights and the objects committed, by the will, to their care and tuition.

If cause exists for changing the guardianship of this ward, the law has prescribed a safe mode of procedure. The guardian appointed by the will of the deceased is, like other guardians, under the general control of the judge of probate, so far at least that, upon good cause shown and on notice, he may be removed.

The decree of the judge of probate in this case being therefore against the plain meaning and purpose of the law, must be reversed.

Decree reversed.