The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-03-23
Disposition Of n Minor,

CoWtQf Quarter Sessions-Judge Allison.
In the matter of Fanny Pratt, minor on
habeas corpus, Judge Allison this morning deli
vered a decision as followsi-
Rachel Pierce, the great-annt of Fanny Pratt asks
that the Court will give into her custody the minor,
who is nine years old, and whose parents are dead.
Jane Ash to whom the writ is directed, and who is
not OF the blood of the minor ressts the application
upon request Of the mother who was the sur giying
parent, that she would take charge OF Far.ny after
her death. This constitutes no legal claim. A
mother in Pennsylvania cannot appolno testament
tary guardian for her child. Nor is tie indenture of
apprenticeship to her valid, because Of the want OF
proper parties.
The claim OF Rachel Pierce rests upon her rela-
tionship and upon her appointment as guardian by
the Orphans Court OF this city. The application for
this appointments made after the writ of habeas
corpus had issued, without notice to the respondent,
and without communicating to the Court the fact of
the pending writ II this had been done the guar
dian would not have been appointed until the deter
rnination of the question in the Quarter Sessions.
Nor would Mrs Pierce have been allowed to take the
ONCE upon herself she being Protestant, and the
evidence establishing the fact thatboh father and mo-
ther OF the chidded in the Catholic fath The act OF
the 29h Of March, 1892 section O. requires that per-
sons OF the same religious persuasion as the parents
OF minors shall in all cases be preferred by the Court
in their appointment" This principle was embo-
died in the statute Of ~ Anne, c. 8, which was
In force in this State; and early as 1885, in the
case OF Graham's appeal Dali. 1856, 1t was held that
o m % oe ieg % 1ardOs ., .e m
appeal, ~ Wright 304, this Court, per Thompson,
P. j. is reported to have held that the act OF 1882
prohibited the Orphans Court permitting an orphan
over the age Of fourteen choosing a guardian who
belonged to denomination OF Christians different
from that to which the deceased parents belonged
| The Supreme Court affirmed the decision, upon the
ground that the exercise OF the legal discretion
which is vested In the Orphans Court In the appoint
| ment nf guardians Is not the subject Of review
| by Court OF Error, which would seem 10 imply
| that the principle had been stated somewhat
too strongly by this court And this is evidently the
view OF the law entertained in Nicholson's appeal
Harris, So The court says the law which forbids the
tRs Of sSo1S s
obeyed wherever it is practicable, for reasons 30
many obvious that they need not be repeated.
with which ne is already clothed. A guardian can
| only be removed for mismanagement or misconduct,
and certainly mans religious belief is neither the
one nor the other The Orphans Court by the terms
OF the act are required TO give preference (other
things being equaD to one holding the same faith as
the parents held while living, but not to make that
consideration override all others. There is dis.
cretlon vested in the Orphans Court which, when
exercised, cannot be reviewed. AS Judge Black, In
Ncholsons appeal, says, 1t Is to be done whenever
1t is practicable.
Orphans Court am justified in saying that for this
reason Mrs. Pierce would not have received the ap
pointment OF guardian II the Court had been advised
OF the fact that the mother, who was all her life
Catholic died with the injunction that Fanny shoult
be trained in that faith, and that the father, who
though ne was born and grew up a Protestant, be.
fore his death received uto the Catholic Churcl
by baptism and communion, and who, by dlarl
kept by him subsequently, appears to have beer
regular in the observance OF the requirements o
that Church, such as attending mass and going II
communion.
The proper disposition to be made OF this case i
= -,
70 suggest TO the respondent that application b.
made 10y her to the Orphans Court TO vacate tn
appointment OF guardian improvidently made, Whic
was obtained by Withholding from the Court infoT
nation that ought to have been communicated 8
that an intelligent discretion might have been eXeT
ctsed, and the law respected and carried into efeC
: | In Nicholson's appeal the Court say a guardian
can only be removed for mismanagement or miscor
duct but this relates only to causes OF complain
against the guardian such as is contemplated b
: the act OF MISUNDERSTANDING or neglecng his trus
@ | Above all this there Is power vested in ever
Court 10 protect itse TO correct its own mistakes
TO retrieve itself from the consequences OF act0
s based on a statement not In accordance with Ch
J. facts, or upon the withholding of information mat
: rial to the question to be decided. We have gonF
lar as TO open decree OF divorce after the death
one OF the parties, for reasons analogous IN prime
pie, and which was sustained by the supreme Cour
: and we have no doubt OF the power of the orphan
Court TO review what IL has done, and TO set aslo
lls own Decree II 1t be necessary by so dong 10 w
;. aeate itself and carry into effect the law OF u
II the present guardian shall be removed, the wa
. VIII De open for the appointment OF person Oh u
l. same religious persuasion with that OF the paren
l. OF Fanny Pratt, to whose custody she can
n awarded, who would be entitled TO the cOntrOl
ner person and the care OF her education and re
glous training. This OF course would not give
the guardian any rights In this respect dnerent tr0
s. those which the law recognizes, He would az 8
OF Times be under the control OF the OrphaI
o. Court whose jurisdiction extends TO al
embraces the appointment control, removal al
discharge OF guardians. For sufiictent cause 9
e. cmld may be taken away from him and gwen 10
ut entlfe stranger and this may be done WIN the chi
OF parent in full life but is every way desirat
that the guardian should exercise the functions al
perform the duties OF his ofce, unless the strongt
n reasons exist to the contrary.
al Until further order Fanny Pratt is renamed
J the custody OF Jane Ash, 10 abide the final dlspo
~ tion OF the pending question
MI. COKE FOR the writ; Mr.. EcOck, contra