This action was founded upon a guardian bond given by Isaac Alexander, as guardian, to Sarah Kirkpatrick with the common condition.
The defense in bar principally relied upon was that Samuel Kirkpatrick, father of Sarah, by his last will appointed his widow, Elizabeth, guardian of Sarah. That Elizabeth being appointed testamentary guardian the Orphans' Court had no power to appoint a different guardian. That the appointment therefore was void and in consequence the bond also on which the suit was brought. Cases cited by defendants' counsel were: 1 Ves. 90-1, Mos. 108-9, Swinb.Wills 216, 2 P.Wms. 115.
It was answered on the part of the plaintiff that all questions relating to the appointment of guardians were peculiarly within the jurisdiction of the Orphans' Court. It was admitted that by the Act of Assembly [ 1 Del. Laws 93] respect was to be had to testamentary provisions in the appointment of guardians. That cases might certainly exist in which new guardians ought to be appointed though former ones had regularly been made by will, — as in case of the testamentary guardian renouncing, or removing out of the government, or becoming insolvent, or by behavior criminal or grossly immoral showing themselves utterly unworthy of the trust. In such cases, they said, the Orphans' Court had surely power to appoint a new guardian. They further contended that supposing the appointment of the Orphans' Court void, yet that the bond given by Isaac Alexander was binding upon him as it was fairly and voluntarily given. They cited the Acts of Assembly on the subject and 2 Eq.Cas.Abr. 487 pl. 18, 485, pl. 7.
PER CURIAM.
The CHIEF JUSTICE, after stating the circumstances of the case, said that the sole defense relied on was that the bond given by Isaac Alexander was void because, as a testamentary guardian existed, the Orphans' Court had no power to appoint him guardian. It has been the practice in this state to discharge guardians for reasons judged of by the Orphans' Court and to make new appointments. Such applications are now frequently made and granted. We therefore apprehend that upon a guardian abandoning his trust or being discharged for a sufficient reason that a new guardian may be appointed. And therefore that Isaac Alexander might have been regularly appointed guardian of the plaintiff's intestate although Elizabeth Kirkpatrick was nominated to that trust by the will of the father.
The jury found a verdict for the plaintiff.