Opinion
December Term, 1852.
The Act of 1762, (Rev. Stat., ch. 54, sec. 1) allowing a father to appoint a testamentary guardian for his children, does not embrace grandchildren.
CAUSE set for hearing upon the bill and answer at PEARSON Court of Equity. Fall Term, 1852, and by (47) consent transmitted to the Supreme Court.
Norwood, for the plaintiff.
E. G. Reade, for the defendant.
John W. Williams, late of Person county, died some time in the early part of 1852, having previously made and published his last will and testament, which was duly admitted to probate, and the defendant, one of the executors therein named, took out letters testamentary, and assumed all the duties pertaining to his office. The testator, after giving several slaves and other property to his grandchildren, who were the children of the plaintiff by his marriage with a daughter of the testator, adds the following clause: — "And I appoint my wife Mary E. Williams, my executrix, and Dr. James E. Williamson, my executor, of this my last will and testament, and I request that the latter will become guardian of both my children and his own." The bill was filed by the plaintiff to compel the defendant to deliver to him the slaves bequeathed to his children, claiming said slaves as their testamentary guardian. The defendant, by his answer, admitted all the material allegations of the bill, and expressed his readiness to deliver the said slaves to any person duly authorized to receive them; but declined delivering them to the plaintiff, for the reason that he had been advised that the testator had no power to appoint a guardian for his grandchildren.
The claim of the plaintiff to be the guardian of his children, by virtue of the testamentary appointment of their grandfather, is founded, we presume, upon the Acts of 1762, (1 Rev. Stat. chap. 54. Sec. 1). That Statute enacts, "that where any person hath or shall have any child or children, under the age of twenty-one years, and not married, it shall be lawful for the father of such child or children, c.," by deed executed in his lifetime, or by his last will and testament, to appoint a guardian for such child or children. Our Act is very nearly a literal copy of the Statute Charles II, ch. 24, and must receive the same construction. In England, it is well settled that none but a father — not even a mother or other person standing in (48) loco parentis — can appoint a guardian under the Statute of Charles. Macpherson on Infants, 82, (25 Law Lib.), — 1 Bl. Com., 462, in the notes to Chitty or Wend. Ed. — 3 Atk. 519. The words of the Act are plain, and we have no right to extend them by construction. Upon an analagous principle, the power to appoint among children, will not authorize an appointment to grandchildren. Rankin v. Hoyle, 41 N.C. 161, Sug. on Pow., ch. 9, sec. 5, page 501, (2 Law Lib., 253). The bill must be dismissed, with costs.
PER CURIAM. Bill dismissed.
Cited: Camp v. Pitman, 90 N.C. 617.