Leavel vs. Bettis. CASE 25-MOTION-DECEMBER 18. Leavel vs. Bettis. APPEAL FROM JEFFERSON COUNTY COURT. 1. The subsequent marriage of the mother does not avoid her prior appointment of guardian of her infant child by a former marriage. 2. In the appointment of guardians as required by section 6, article 1, chapter 43, Revised Statutes, preference is given-first, to the father, and the mother, "if unmarried," next, and directs the appointing court not to disregard that order, "unless it deems that prudence and the interest of the infant so require." This not only does not mean either to avoid female guardianship by marriage, or incapacitate a married mother to be the guardian of her fatherless infant by a former marriage, but, on the contrary, it clearly implies, that whereas, in many cases, the infant's interest may require a mother's care and tutelage, she may, and ought to, be preferred over all others in the order of precedence. 3. The appointment of a guardian, when no vacancy exists, is void; and, in such a case, a motion to remove was in effect a motion to revoke his illegal appointment. 3 Dana, 600; Isaacs vs. Taylor. Rev. Stat., sec. 11, chap. 43, 1 Stant., 576. Rev. Stat., secs. 6 and 8, art. 2, chap. 43, 1 Stant., 578. JEFF. BROWN, CITED Civil Code, secs. 363, 364. 3 Dana, 600; Isaacs vs. Taylor. For Appellee, Rev. Stat., secs. 11 and 12, art. 1, chap. 43, 1 Stant., 576. Leavel vs. Bettis. JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT: The appellee, Lizzie Bettis, once the widow of James S. Leavel, deceased, when domiciled in Garrard county, with her infant child, not three years old, was appointed her said son's guardian by the county court of Garrard. Having afterwards intermarried with her co-appellant, they, with the ward, removed to and became residents of Jefferson county; shortly after which the appellant, Squire T. Leavel, the father of her first husband, without notice to her or her appearance or consent, induced the county court of Jefferson to appoint him guardian of the said infant, then about four years old. At the next term of said court, on notice to the appellant, the appellee procured a rule on him to show cause why he should not be removed from his assumed guardianship. He responded that the appointment of the appellant, Lizzie, by the Garrard county court, had been legally vacated by her subsequent marriage; and, on that ground, he denied the necessity of notice to her of his application for the appointment, and urged the court to remove her. On a full hearing, the court made an order removing the appellant; and of this he complains by this appeal. We know no law which makes a married woman ineligible to the guardianship of her own orphan child, or which declares that marriage vacates such a trust. The 16th section of article 1, chapter 37, page 500, 1 Stanton's Revised Statutes, relied on by the appellant's counsel, has no application to guardians. It simply provides that the marriage of an administratrix shall not, as by the common law, entitle her husband to be "a personal representative in her right; but the marriage shall operate as an extinguishment of her authority." Neither the letter nor reason of this provident enactment applies to guardians. Its object was to prevent an Leavel vs. Bettis. irresponsible intruder from controlling administration. But a husband never had any authority to participate in, or in any way control, the guardianship of his wife, whose trust is tutorship as well as curatorship; and therefore the two classes of fiduciaries are in separate and dissimilar categories. Moreover, had the Legislature thought that the same reason and policy applied to each class, it would have provided a similar remedy for each; and the failure to do so is conclusive against the assumption that the spirit of the quoted section includes in its range female guar dians. Nor does the 6th section of article 1, chapter 43, Stanton's Revised Statutes, page 575, tend to show that marriage nullifies female guardianship. In merely prescribing the order of precedence, which may be claimed in the appointment of guardians, it declares the father first, and the mother, "if unmarried," next; and directs the appointing court not to disregard that order "unless it deems that prudence and the interest of the infant so require." This not only does not mean either to avoid female guardianship by marriage, or to incapacitate a mother to be the guardian of her fatherless infant, but, on the contrary, it clearly implies that when, as in many cases, the infant's interest may require a mother's care and tutelage, she may, and ought to, be preferred over all others in the order of precedence. Then the marriage of the appellee, Lizzie, did not avoid her prior appointment of guardian. Consequently, the court appointing the appellant had no jurisdiction in the ex parte movement he made without notice; and, if there had been notice, his appointment was void, because there was no vacancy for him to fill. Zerelda Storms, &c., vs. C. C. Storms, &c. In such a case, a motion to remove him was, in effect, a motion to revoke his illegal appointment, so as to leave no excuse for disagreeable collision between him and the ward's mother, who is, in law, his only guardian. As the appellant never was the guardian, it was not necessary to specify any grounds for seeking a revocation of his void appointment. Wherefore, seeing no error, the judgment of the court below is affirmed. CASE 26-PETITION EQUITY-DECEMBER 19. Zerelda Storms, &c., vs. C. C. Storms, &c. 3b 77 90 583 APPEAL FROM GARRARD CIRCUIT COURT. 1. A mortgage, describing correctly other debts secured by it, describes the debt to C. C. Storms as due by "a note or notes for about three hundred and fifty dollars," and the debt of N. Storms as "an account for about fifty dollars." This cannot be construed as including six notes to C. C. Storms, amounting, in the aggregate, to more than fifteen hundred dollars, or notes and accounts to N. Storms exceeding nine hundred dollars. If the note or notes to C. C. Storms had exceeded three hundred and fifty dollars only to a small extent, "about three hundred and fifty dollars" might have constructively embraced the actual amount; but when the excess is so enormous and incredible, "about three hundred and fifty dollars" must be fixed at three hundred and fifty dollars; and so, more especially, in the case of N. Storms, must the debt secured by the mortgage be fixed at fifty dollars. 2. The commissioner's only authority was to report facts to the court for its inspection, but not to dictate its ultimate decision. 3. The deposition of a husband, after his wife has obtained a divorce from him, is competent testimony against her interest, when it divulges no communication between them during coverture. 4. For any debt paid by a surety to a creditor, embraced by the mortgage, the surety will be entitled to stand as a subrogated beneficiary. Zerelda Storms, &c., vs. C. C. Storms, &c. R. M. & W. O. BRADLEY, CITED For Appellants, MSS. Opin., Jany., 1858; Wilson vs. Herndon. 3 Metcalfe, 527; Kay vs. Tydings. Myers' Code, notes on page 545. 18 Ohio, 526; Cook vs. Young. 7 B. Mon., 24; Campbell vs. Weakley. DUNLAP, CITED For Appellees, Civil Code, sec. 651. JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT: 66 The decree for distribution among the mortgagees allows much more to C. C. Storms and Nathan Storms than the mortgage constructively intended to secure to them. The alleged debt to each of them is specified in the mortgage, and no other or essentially greater debt can be allowed to either of them, consistently with the rights of the appellant and other creditors. The mortgage describes the debt to C. C. Storms as due by a note or notes for about three hundred and fifty dollars," and the debt to Nathan Storms as an account for about fifty dollars." This cannot be construed as including, as adjudged by the circuit court, six notes to C. C. Storms, amounting, in the aggregate, to more than fifteen hundred dollars, or notes and accounts to Nathan exceeding nine hundred dollars. If the note or notes to C. C. Storms had exceeded three hundred and fifty dollars only to a small extent," about three hundred and fifty dollars" might have constructively embraced the actual amount; but when the excess is so enormous and incredible, about three hundred and fifty dollars must be fixed at three |