Elk County PA Court Petitions
Petition to revoke appointment of guardian. O. C. Elk Co. Jan. T., 1908, No. 145.
John G. Whitmore and C. H. McCauley, for the petitioner. W. A. McClure, contra.
HALL, P. J., Sept. 30, 1908.-This is a petition to vacate the appointment of Barton A. Moore as guardian of Grace, Lillian, Daniel and Jannetta Leach, minor children under the age of fourteen years, of Howard and Mary Leach, late of the borough of Brookville, Jefferson county, deceased, which was made by this court on Jan. 7, 1907. The petition filed by T. H. Armagost alleges that he was appointed guardian of the said minors by the orphans' court of Jefferson county on Tan. 19, 1907. The petition further sets forth that Howard Leach, the father, died intestate Nov. 1, 1906, and that his wife died intestate Dec. 13, 1906, leaving the above-named children to survive her; that the said "parents" owned real estate situate in the township of Rose, Jefferson county, where they had lived for more than ten years prior to the time of their deaths; that Howard Leach, the father, left a father living whose name is Daniel T. Leach, "who is willing to take care of the said minors and act as parent for them," and who is a proper and suitable person to guide, conduct and control their educational and religious welfare; that at his instance and request the said T. H. Armagost was appointed their guardian by the orphans' court of Jefferson county; that the said Daniel T. Leach and his wife, Nettie M. Leach, are the closest and nearest in line by blood and marriage to the children of said decedents and have the first right to look after the personal welfare of said children; that shortly after the death of Maud M. Leach one Barton Moore, of the county of Elk, came and took said children from their residence and home with the understanding that all of said children would be returned; that under these false representations they secured the custody of said children and took them to Elk county, and on Jan. 7, 1907, presented their petition to the orphans' court of Elk county and asked that Barton Moore be appointed guardian of the persons and estate of said children; that the facts set forth in said petition were not true; that said children did not reside in Elk county for any purpose, and that their actual and legal residence was in Jefferson county. That by representing these facts said Moore was appointed guardian of said children; that said court had no jurisdiction to make the appointment. . . . That all of the real and personal property of said minor children is situated in Jefferson county and is of the value of about $1,100. The petition was presented April 20, 1907. A rule to show cause was granted returnable this day, and the cause now comes on to be heard on depositions taken under the rule.
Under the uncontradicted evidence, as disclosed by the depositions, it is apparent that the petition was carefully drawn for the express purpose of deceiving this court. It states that Daniel T. Leach and his wife, the paternal grandparents, are the nearest in line by blood and marriage to the minors, whose real estate descended to them from their "parents," and that Daniel T. Leach is willing to take care of the children and act as parent for them and is a proper and suitable person for this purpose. As a matter of fact, Barton A. Moore, who was appointed guardian by this court, is the maternal grandparent of these minors, a fact carefully omitted from the petition and is quite as near in line both by blood and marriage as the paternal grandparent. If Daniel T. Leach is now willing to act as a parent for the children he failed to give any intimation of the fact during their mother's last illness or after her death until long after other arrangements had been made for them. The "parents" of these minors had no estate, either real or personal, as the father was without property of any kind. All of the estate, both real and personal, was owned by the mother, to whom it was presented by her foster father, William Campbell. The only incumbrance against it, which consists of a judgment amounting to $250, arises from the fact that 'she was obliged to borrow money to pay her husband's funeral expenses. If she had died without issue, her parents, and not those of her husband, would have taken the inheritance, and we see no good reason under this evidence to transfer its control from her parents to the parents of her husband at the present time. T. H. Armagost, the petitioner, is a son-in-law of the paternal grandparents. He does not appear as a witness in the case, but relies principally on the testimony of his wife, his father- in-law and his mother-in-law to support the allegations of his petition. As the testimony upon the other side also includes that of the guardian, B. A. Moore, and his wife and two daughters, we look further for the testimony of a disinterested witness, and we think we have it in that of William Campbell, who took the deceased mother, Maud Leach, into his family when a child of two years of age, reared her until the time of her marriage, and who with his wife were affectionately regarded as her real parents by the deceased mother, even, according to the testimony of the witnesses for the petitioner, up until the time of her death. He testifies that he was present at the home of the mother, Maud Leach, during the time of her last sickness and death, when he and Grace Moore, her sister, looked after her and attended to her and her children during her last sickness; that Grace was sent there at his request by her father, B. A. Moore; that together they took entire care of Mrs. Leach and her children until the arrival of Mrs. Leach's mother the night before she died; that after her death the children remained a week at their home under the care of himself, Mrs. Moore and Grace, and that at no time during the sickness of the mother or during the week succeeding her death did the paternal grandparents, or any of the Leach family, make any effort to assist in taking care of her or her children. He testifies that at a family meeting which occurred the second day after the mother's death, at which the paternal grandfather, D. T. Leach, was present, it was agreed between all the parties concerned that Mr. Cowan should act as the administrator and B. A. Moore should act as the guardian for the children, and to this agreement D. T. Leach made no objection. That it was understood then among the members of the family then present, including D. T. Leach, that B. A. Moore was to be the guardian of the children and to remove them to his home in Johnsonburg, Pa. That the father of these children had no property at the time of his death, but that the mother owned the house and lot and the furniture in the house; that the witness, Mr. Campbell, himself had presented her with the house and lot together with the furniture that was in it shortly after her marriage; that there is a judgment against it for $250, which was created by the mother, Maud M. Leach, to borrow the money after the death of her husband to pay his funeral expenses. That the property is worth about $1,000. He also testifies that he has known the paternal grandparent, Daniel T. Leach, for about ten years; that he is a man of no means, no steady employment and not a fit person to have the care and custody of the minor children; that neither he nor his wife ever showed any inclination to take the personal care of these minor children at any time, either before or after the [Moore's Estate.]
death of their parents. That it is not true that B. A. Moore agreed to return the minors to Jefferson county after he brought them to his home in Johnsonburg as alleged by the petition, but that on the contrary he took them to his home with the understanding that he was to have the control of them and be appointed their guardian. He further testifies that he knows B. A. Moore for twenty-five years and that from his knowledge and acquaintance with him he considers him a fit person to have the care and control of these minor children.
Under these circumstances we find as a matter of fact that although the legal residence of these minors was in Rose township, Jefferson county, at the time of the death of their surviving parent, they were brought to Johnsonburg, Elk county by their maternal grandparent under and in pursuance of a family agreement that he should do so, and that he should be appointed their guardian, and that at the time of his appointment as guardian by this court their residence in Elk county was bona fides and the court had jurisdiction. There is no competent proof before this court that T. H. Armagost was ever appointed their guardian by the court of Jefferson county.
The act of assembly contemplates the residence of the minor at the time the application for the appointment of a guardian is made and not at the time of the death of the parent. In the case of Taylor Minors' Est., 26 W. N. C. 576 [s. c., 9 Pa. C. C. R. 122], cited by the counsel for the petitioner, Judge Ferguson says: "A minor's residence is that of his father, and if he has no father that of his birth, and he cannot acquire another until he becomes sui juris. This is so well settled that it is not necessary to cite authorities." We must regret that they were not cited, for we have been unable to find them. The residence of a minor orphan who resides with his grandparent, who stands in loco parentis, is that of the grandparent, or if he resides with a guardian legally appointed by the court it is that of the guardian. It is absurd to say that the residence of an orphan minor remains at the place of his birth until he reaches his majority and that no other court can take jurisdiction of his person and estate, even though his entire estate should be situated in a different state from that in which he was born, and he should live upon it during his entire minority, which would be the logical conclusion from the decision cited.
The rule is therefore discharged at the costs of the petitioner. From W. S. Hamblen, Esq., Ridgway, Pa.
[Source: Pennsylvania County Court Reports, Vol. XXXV, 1909] Submitted by Kim Torp
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