Year: 1875

city. In mis- decision Surrogate hutchings gives full
history the and the proceedings TAKEN OF which
the following is a synopss:-


This matter comes before me for consideration on
two pettons-one OF Mrs. Elizabeth T. Damarell, 10
vacaie an order made on the 2lst day of November
1878 removing her as cstamentary guardian and ap-
pointing Miss Emily H. Walker guardian OF the person
OF Kate W. Shepherd an infant and another OF Miss
euardanshp 10 which position Of confidence she was
appointed by the last will and testament OF Samuel C.
Shepherd, the child's father


Mr.. Shepherd q member OF successful firm OF
shipping merchants in the city Of New York. and re-
sided Thirty fifth street at the time OF his death,
which occurred from suicide in September, 1873 He
bad lost his wife in 1868, 1--WE years before his own
DEATH She died shortly after 81 ag birth TO the infant
the custody OF whom Is tho matter now at issue Mira
Damarell was employed as the monthly nurse Of Mrs.
Shepherd at the time OF the birth Of the child and she
remained in the house thereafter for the period Of
lew days from Mrs Shepherds death. Some weeks
subsequently, on the recommendation of DIR. i. N.
OTIS the family physician, she was employed by Mr..
the special care of the infant in which position she
remained employed continuously until the latter part
of 1874. Mr.. Shepherd was married to Miss Kate
Walker the mother Of his child about the year 1858
His wife was member OF very intelligent and
wealthy family, residing and occupying high social
position In the city of Boston Subsequent to the death
Of his wife Mr. Shepherd became subject to periods OF
great mental depression and melancholy. The despond-
ency which overcame him at these periods was deep
that he announced that he expected die in insane
asylum that his firm had sustained great losses and
that ruin was impending, when in fact they were
In the midst OF great prosperity, and under such
belief he even curalled bis household ex-
penses to an almost absurd extent Mr. Shcp-
herds will was subsequently offered for pro-
bate No appeared to contest the justness
OF its provisions perhaps the validity OF the nstru
ment and especially OF the clause appointing Mrs. Da-
mareli the testamentary guardian OF the child mght
have been contested in limne, the ground oil his
own insanity and decision had thereon


Mrs Damarcl then being confessedly insane, and the
child being left without any to take legal charge Of
her person and property, petition was filed by Mrs
Shepherd the pa.eraal grandmGshe M asking for The
late partner; and another was filed by Mr. Edward J.
Walker, asking for the appointment of MISS Emily
II. Walker, maternal aunt The two petit
tions were considered in the proceeding,
and by consent MISS Emily H. Walker was APP
pointed TO the guardianship with the entire approval
as known, of all the relatives of the child Mrs.
Damarell although the testamentary guardian had no
part In that proceeding, nor was she cited on It,
which was undoubtedly an oversight, and was
fatal to the order which then made, 80 far as II
purported to remove her from the position TO which
she had been appointed by the will and as the rights
OF Mrs. Damarell not affected by the first pro-
ceeding by reason OF her not being made party
thereto, the order then granted far as purports TO
her should be vacated and decree will there
fore be entered to that effect


The proceeding, therefore, now before me, is upon
the application OF Miss Abby J. Walker to remove Mrs.
Damarell testamentary guardian, on the ground OF
incompetency and for the appointment Of Miss Emily
H. Walker O maternal aunt, who has custody OF
the child under the previous order appointing her to
the guardianship The word incompetency," as ap-
piled to guardianship is one my Judgment of broad
bigniHcation and ccmprchensiveness, like the word
nnsuitAbleness as applied 10 trustee, In my opinion
It has relation, not merely to the mental condition





in the interests Of the child in respect OF nurture
education and safety, the Court may take into
position of the guardian to the infant.
My judgment is ayerse TO the separation
Of child, bereft OF Its parents, from its parents'
relatives who fitted to take their place and espe
cialy from who, through ties OF ssterly affection
TO the mother clngs TO child with as much affection
though she her own and still further, where
there reasonable ground TO believe that there Is
competency the part OF the person named guardian
in the will Suppose Mr. Shepherd OF wealth





1870 when l satisfied from the evidence he
IN disordered mental condition. selected an in
feror domestic in his house the guardian oil his
child would it not be within the province OF the Court
considering the social status Of the parents and OF
the families which they belonged the child being
the inhcrtrcss OF wealth. TO remove such person from
the guardianship and to vest it in others OF undoubted
'competencv" or ntnessS To my mind there would be
question in reference to its power letter written
by Mr. Shepherd after the death Of his wife 10 her
sister, Miss Abby Walker shows that he regarded her
the one above all Others TO whose care aud Lurture
the child should be conlded, though years after.
he executed will, in which he appointed testa
mentary guardian Mrs Damarel, stranger To the
blood OF himself and wife, and whose social position and
education below that of the chld's parents In
view Of his previously expressed feelings in reference
TO Miss Walker, his sudden change Of sentiment
exhibited in the appointment OF Mrs. Damarell is
only to be ascrbed 10 the fact OF an insane condition
In fact is evident to my mind that Both the testaor
and the testamentary guardian were insane 10 refer
10 the insanity Of Mrs Damarell there Is, in my
opinion, doubt Between the fall of 1871 and the
period OF Mr. Shepherds death she had two distinct
attacks She recovered from Tile first and remained in
apparently normal condition for about six months
when she had relapse from which she had not
cred at the time OF Mr. Shepherds death; did her
friends deem her in n condition TO apply for recogn
tion OF her rights testamentary guardian until
than year after his death Before this afilction
overcame her, the evidence shows that she calm
and self possessed that aftcrward she lost control
of her nervous system. and was depressed and ex-
bbited symptoms of mingled mclanchoia, hypochon
dria and hysteria. The question, therefore which is
presented to me at this time is whether Mrs Damarcl
though at present apparently recovered Is In such
dion as to justify me in deciding that u would be safe
70 ntrust her WIN the guardianship OF tne person OF
the infant, she having been, within short PERIOD
twice q subject Of insanity.


Mrs Damarell has appeared in court during these
proceedings, and she Is apparently sane She has ies
titled in the a witness and exhibits now, am


frank TO say, all the evidences Of recovery but is not
conclusive to me, layman Of her absolute recovery
Certainly Mrs. Damarell, at the time OF the death
OF Mr.. Shepherd, not, and had not been Tor
year previous, nor was she for months afterward,
by reason OF her insanity, proper person 10 have
the custody OF the child. The evidence which has
been given Of her incompetency, during that period
not disputed 1t is impossible TO predict what may be
tho ultimate condition Of person who has been
a&cted with mental alteration. In view Of this
tragic elimination Of insanity in this very household
without recurring TO the illustrations in medical itcra
turc, appears to me that would be taking respons
bility which no court would be justified 10 doing, were
Ito give this child 20 the care OF testamenary guar
dian who has been twice insane and confcssedy incom
petent for long period to assume trust which was
given TO her by the will Of Mr. shepherd and in this
serious aspect or the case | cannot assume IT.


There Is another consideration which has some
weight with me in the disposition OF this case Two





my mind, One is, that her comfort happiness culture
and education are reasonably assured under favorable
circumstances and surroundings, in the care Of her
aunt the present guardian; the other Is want Of
such assurance, even With the best Of Intentions in
view OF disparity OF social position and education be-
tween Mrs Damare and the family Of the child. The
aunt lady OF wealth, education and refinement,
occupying superior position IN New York
and Boston society. The child, who Is the
principal object OF her affection, representing
deceased sister, between whom and herself great
affection existed about eight years
Of ago and has been two years under her
present guardian, and undoubtedly, regards her with
the feelings she would entertain for her mother
II living Mrs pamarell, the contrary, is lady 10
very moderate circumstances. She has income and
her testimony shows that shc has had limited facilities
for obtaining education, not having attended school
since she was twelve years OF age while she Is no
necon by blood with the child proposed 10 be placed
In her


am asked under the forms flaw, 20 separate the
child from Its natural guardian; TO remove her from
associations which she Is entitled TO continue from the
condition Of her birth; TO deprive her Of the opportun
ties Of education and Of her proper place in society,"
which now reasonably assured, and virtually 10