The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-08-24
SUPREME C0UaT-SpEcIAl TERM.

erch for the defendants proposes 10 move Tor
the discharge Of tho prisoners.
SUPREME CoUaT-SPEcIAL TERM.
The Gerety VIII Cusc-ncmovn, Of Tcs,a-
mentnry Cmardinn-Importnnt DccisiOn--
Over 100000 Involved.
EasoteM A. Foley Us. Georg, Mcdonald and Joseph L.
Gere.y--rhs suit which has been before the courts
the 9th OF july 1885, has been decided IN favor OF
the plainllG Mrs Foley Her father, the late Francis
Gorety, tho esator, was drowned while crossing the
bar at Matamorcs. Mckee, on the llih OF November,
1853 He well known in this city as cotton ner-
chant Of excellent character reputation aud carried
business for many years at No. Old slip He was
only thy-six years Of age at the time Of his death lie
left tho whole OF his estate real and personal amounting
to over 500 0o0 TO his childTenMs Foley and her
brother Joseph L. Gercty, boy twelve years of age
BY his will be appointed Mr. James Lynch aud George
McDopad executors, aud Mr. Mcdonald sole guardian.
The trial occupied the court four days and attracted
much attention, CITY witnesses being examined,
and resulted IN tho Of the defendant McDouald
because Of bis unAtness, insolvency and intem-
pesatc habits Mr.. James Lynch, Of the exocaioss
testified tina; the VIII admitted - probate January 2
1884, that in compliance with the particular request Of
the charge Of the whole estate deposited
moneys &C., in bank in lis own name; iha, be
did not trust any OF property In tho hands of de-
scndant tcDonalG) until the 2stb OF March 1885, when
ho ynch) got legal release from further liability, and
On ha, day without the knowledge consent OF Mes
Foley turned Mcdonald tie whole OF tho estate
without security and bcfor' giving Mcdonald possession
OF the securities arranged with him that no McDouad
should place the legal manae oment OF the ostae The
handsof aiawyer, D Quinn Who proves TO be me bro
porarc, 10 Tho public generally well as to GUARDIANS
and publish she able opinion OF the court In
full with decree and judgment
cfiSIoS yrsTicH Charles DANIELS.
This action was Droush, 10 remove the defendant,
in on the ground Of alleged Incompetence insolvency
and intemperae habits he was appointed guardian OF
the n ." hs ss Hss ON by
18th OF September 1863 and admitted 70 probate the
% day Of January 1854 The estate which the infants
property, and IN value amounted 70 upwards OF
sioo, COO most Of which was accumulated by their
quite intimate with the defendant Mcdonald who was
rslned 10 HIM by marriage. and he entertained high
opinion OF his character and faiherly disposition.
Whether be was fully acquainted with his circumstances
habits not satisfactorily established by the owl
dence; but as those habits and circumstances have
not undergone any important recent chance il is far
to presume that he not an entire stranger TO them
But he knew what the defendants circumstances
and habits were, that should moi preclude inquiry
into tho proprety OF his selection guardian for the
iesators children for that selection should be made for
and for the qualification OF tho friendly impulses Of
the tes,aor The public have such interest in Their
maintenance and in their intellectual and moral ad-
vanccmen well the acquisition OF proper indus
trial business habits should lead TO the removal
tnnance Of the relation so cYeae would produce or nr
baby produce, subserson OF these ends. But the
defendant insists that where the appointment Is Of tes
iaentary nature as is In this case, Is out Of tie
power Of the court whore the promotion
riy tho objects just mentioned require IL TO be DONE
SO FAR interfere the guardian and appoint
another in his place IL il perhaps needless observe
II this the Law would fall very far short OF
sncsans adequate proeeom '. ,SA, ucy ss6,
most In need Of u. and must be, more thAn nil hers
dependent apon ! for ..heir pr sent security and
Of the relation Of parent and chd taa can be urged IN
support OF the propositions insisted up,n; for while
dsavor, far lay In bis power, TO make careful
and judicoos selection Of guardian for is infant chill
dren, no must in many entirely fall in securing
that end There Is perhaps fruitful OF
and mistake than that which arises out Of ndvd
ties of others and mistakes OF ths nature could not
be corrected by courts OF Justice where they have been
acted upon In the appointment OF guardians for Infants
they could fail be productive or very reat Iudi
vdus hardshps and INJURIES well as sources or serious
lasting public derangemens There can DO no creator
Obj elton W The exercise OF the power Of removal IN the
case of tesamestay guardian account OF the fact
that the parent must have been supposed TO be careful
and judcous the selection than there 10 where The
appointment is made BY pubic officer or court for
the latter always expected TO be governed by the
same care and consideration in the selection to be
common 10 remove the guardian when hts
subsequent elrca instances or m'scnnduoi exhibits
for the power Of removal to be invoked In those
than IL 10 where the appointment has been made
parent on account OF thorough acquaintance and
the caution and produced by affection TOR the child,
|
properly But when, through the lnLrmiiy OF human
Judgment imperse knowledge OF the person selected,
tho esaneptary appointment Is found 10 be IN impro'
per one there should be reluctance the part OF this
court II u has the power 20 interfere for the welfare OF
the infants and the promotion OF the public good ana
dsplacc the guardian and appoint another IN his place
The parent has no authority growing out OF his relation
to his child appon, guardian for him whose HABITS
and government may smbittcr hts life and crcumsorice
destroy his future usefulness; parent meel1he
has authority his child which extends beyond
the limits of his life Whatever authority he has
for tho appointment Of guardian for his infant children
derived from the positive provisions OF law And the
entrusted 10 him By those provisions cot 70 be
used for the deirment or to The prejudice OF the
II in such a manner 10 promote the future
usefulness and welfare Of his child. Where Tor any
cause the power 10 not 70 BE- used, ~
abuse Of which " the duty Of cous Of justice 70
correct. Many cases have been cited ~ authority
against the exercise OF this power by the courts, out
none OF them involved the direct decision OF this point
Whatever ~s said In them affecting the consdereslon
OF this question dicta and not me decision
Of court upon u II no direct decision can Be round ~
favor Of the exercise OF this authority BY courts 81 JUS
tce 10 certain that Be found opposed t0u
On the other hand the convictions OF judges and text
writer's a. well a. the reason and analoeies or ne Jaw
quite decided In favor OF tho existence OF the a
the persons and estates OF infants that u may De re-
sorted TO and applied where the case 10 such as 70 ex
hbit the propriety OF doing % for TIE depIacemens
even OF the government and custody OF the nm
se The great end the Law has In view u the future
we-being aud usefuness Of the child - member OF
sociy, and eysry other relation and oonsiderston
made yield 0r the promotion Of ssas ene vpcn nis
subject Chancellor Kent sayst-eTnas courss o. Jusce
may In sber sound discretion, Ard wnen ne morals OF
sac,, Aha require IL.