family historian

Brief for appellant residence is not merely perfunctory and formal but deliberate and intentional As residence is altogether a matter of choice and volition the clear and explicit statement of the will is final on the question of Tryon’s domicil which however is abundantly proved otherwise There was no property in Mississippi belonging to the two children Alga and Elmer Tryon which the appellee could administer as guardian If the policy or benefit certificate was their estate it was undoubtedly located in Tennessee where Tryon had his domicil at the time of his death If the debt or obligation due on the benefit certificate was their estate then its locus was in Nebraska where the debtor corporation had its situs In either event the appellee could not draw the fund into Mississippi by attachment ICRR Co v Smith 70 Miss 344 Bush v Nance 61 Miss 237 Buoy v KCM 6 BRR Co 22 So Rep Miss 296 The domicil of a legitimate or legitiniated minor is during the lifetime of his father the same as and changes with the domicil of his father Dicey on Conflict of Laws p 120 Thirdly minors are generally deemed incapable proprio marte of changing their domicil during their minority and therefore they retain the domicil of their parents and if the parents change their domicil that of the infant children follows it and if the father dies his last domicil is that of the infant children Story on Conflict of Laws sec 46 In Wells v Andrews 60 Miss 373 where children were unlawfully removed from Tennessee to Mississippi the court said They the children were domiciled in Tennessee and the jurisdiction of the courts of that state over them and their estate was not destroyed by their removal by their relatives to Mississippi In such cases there is no difference between unlawful removal and unlawful detention The law in efiect is that the 42 BOYLE v GRIFFIN Mch 1904

Brief for appellant unauthorized interference with a child’s residence does not affect the place of his domicil The subject matter of this litigation is solely a check payable to appellant This check was attached as the property of appellant Boyle was not indebted to Grifiin either individually or as guardian The only judgment which the court can render in an attachment suit when the complainant fails to prove that the principal defendant is indebted to him is to dismiss the suit and discharge the attachment Appellant complied with the laws of Mississippi and as testamentary guardian is to be preferred over appellee who was appointed on his own application The record of the appointment and qualification of Boyle as guardian together with the certificate of the clerk of the court as required in said act properly authenticated under the act of congress was filed in the ofiice of the clerk of the chancery court of the second district of Tallahatchie county on September 18 1902 It is true that this suit was commenced a short while prior to that date but Boyle was not suing but being sued and it seems clear that the provisions of the statute have been strictly and literally complied with He was not required to file the record etc before he was sued but before he brings a suit or receives without suit property of his wards Furthermore if it had been necessary for him to file the record before the suit was brought against him that is if the provision of the statute applied in this case he could perfect his right by a subsequent compliance with the statute Grist v Forehand 36 Miss 69 It is argued that our position is a collateral attack on the judgment appointing Grifiin guardian in this state and that under the decision in Ames v Williams 72 Miss 760 the judgment of the chancery court cannot be attacked collaterally We concede that if Boyle had been a party to the proceeding in which the appellee was appointed guardian he could not 84 Miss BOYLE v GRIFFIN 43

Brief for appellant collaterally attack the appointment But being a stranger to that proceeding he can attack the grant of the letters in this proceeding It must not however be understood that all strangers are entitled to impeach a judgment It is only those strangers who if the judgment were given full credit and effect would be prejudiced in regard to some preexisting right that are permitted to impeach the judgment Being neit her parties to the action nor entitled to manage the cause nor appeal from the judgment they are by law allowed to impeach it whenever it is attempted to be enforced against them Freeman on Judgments 4th ed vol 2 sec 335 An exception to the rule against collateral attack is stated in favor of strangers to the record whose pre existing rights are affected and who had no knowledge or notice of the proceedings and such persons having had no opportunity to reverse erroneous judgments are accorded the pnivilege of calling them in question in collateral proceedings Ency Pl Pr vol 12 p 202 But this rule against collateral attack applies only to parties and their privies It does not apply to such third persons or strangers to the record as would be prejudiced in regard to some pre existing night if the judgment were given full credit and eifect Eureka Iron and Steel Works v Bresnalum 66 Mich 489 The rule that a judgment of a court of competent juris diction is conclusive until reversed or in some manner set aside and annulled and that it cannot be collaterally attacked by evidence tending to show that it was irregularly or improperly obtained only applies to parties and privies to the judgment who may take proceedings for its reversal and in no sense extends to strangers Atkinson v Allen 12 Vt 619 To hold that a stranger to a judgment could not attack it in a collateral proceeding would be to deprive him of all redress whatever Goladar v Gates 20 M0 236 44 BOYLE v GRIFFIN Mch 1904

Brief for appellee This rule is universal Sidcnsparker v Sidensparker 52 Me 479 488 Safford v Weare 142 Mass 231 Vose v Martin 4 C ush Mass 31 Downs v Fuller 2 Met Mass 135 138 Luflin v Field 6 Met Mass 287 289 Gilbert v Duncan 65 Me 469 475 Oaswell v Caswell 28 Me 232 237 Fall River v Riley 140 Mass 488 Leonard v Bryant 11 Met Mass 370 373 Hunter v Cleveland Coop Stove Co 31 Minn 505 Ogle v Baker 137 Pa St 378 384 Ingals v Brooks 29 Vt 398 401 Boisse v Dickson 31 La Ann 741 Grifiin the appellee suppressed facts which would have prerented the issuance of his letters He cannot claim that he is entitled to any priority over the appellant because his letters were issued before Boyle filed the copy of his appointment with the chancery court clerk for if he had disclosed what he knew the application would have shown on its face that it was premature He cannot take advantage of his own wrong James G M cGowan for appellee The chancery court adjudicated that the wards residence was at Water Valley Mississippi upon issuing the letters and the act of the clerk was confirmed by the chancellor in term time after the filing of this suit and before the hearing or taking of proof in this case without exception or objection by Boyle which if he had done successfully would have ended this litigation So the question of their residence is res adjudicata Under our constitution the court had junisdiction of this case but if there could be any question at all as to this one of the defendants without collusion paid the money into court and asked that court to settle the question at issue As to collateral attack Appellee objected to Boyle’s testimony on the ground that his appointment xmld not be attacked collaterally in any suit by him as guardian in this state Relying on Ames v Williams 72 Miss 760 followed strictly in Gillespie v Hauenstein 72 Miss 838 84 Miss Born 2 GRIFFIN 45

Opinion of the court Notice is unnecessary in the appointment of guardians in Mississippi and counsel are in error when they say that three months had not expired before appe1lee’s appointment He was not appointed until ninety two days after the death of Tryon besides that question under Ames v Williams cannot be raised except in the court of Grifiin’s appointment OALHOON J delivered the opinion of the court At one time there lived in this state a gentleman named Andrew E Tryon He was a chronic invalid He had at the time this record is concerned with him his three little motherless children the survivors of a family of five of them He seems to havebeen in life and up to the hour of his death absolutely devoted to them and all the time Possessed with a fervent wish that they should be kept together and grow up with fraternal love and affection Disease had for some years made work for their support impossible to him Struggle for a livelihood had to cease but from no fault of his own Finally all he had was exhausted and he could not furnish bread for the mouths of his little ones and they had no nest He was destitute and destitute with a heart filled with every generous impulse of paternal devotion to his offspring Longing to help them he was powerless chained to a rock by pitiless disease but with great and fetterless affection A situation more distressing to a sensitive heart it is not easy to conceive Vllhen everything had been exhausted in maintenance and starvation was snarling at his brood good people of Tutwiler came to their aid in such way as they could and charity combated the wolf In this his dire extremity dominated as he was by the hope of keeping his children together he made application to the Orphans Home a noble charity of the Methodist Episcopal Church established at Water Valley Miss to receive them Argued orally by Percy Finlay for appellant and JE McGowan for appellee 46 Born L GRIFFIN Mch 190484

Opinion 0 the court in its generous shelter for the distressed providing in the application that his relinquishment of their custody should be until such time as I may be able to care for them This was dated March 25 1902 and shows that he still hoped to recover his health and support them This was not acted on so far as this record shows but on April 9 1902 the extremity being great a worthy clergyman of that church made and signed Mr Tryon’s name to another application to the same institution for their admission but without Mr Tryon’s knowledge consent or ratification The action of this minister was from the most benevolent motives and above criticism because he knew of the desire of the father that the children should not be separated and that the father was in no condition for consultation and that immediate action was absolutely necessary He assumed and was warranted in assuming that in the emergency then existing the father could not but approve This worthy Christian man then took the three children Ada aged 11 Algie aged 7 and Elmer aged 5 years to the institution which accepted Algie and Elmer but refused Ada because of her ill health and the benevolent clergyman took her back to Tutwiler where she was cared for by charity until sent to Memphis to another Christian charitable institution known as St Peter’s Orphan Asylum This was at her father’s wish so that she might be near him he being then in St Joseph’s Hospital there under treatment and with hope of recovery and without doubt adopting Memphis as his permanent home He had also written the Orphans Home at Water Valley for Algie and Elmer to be sent and with money for their fare to Memphis furnished by friends but they were not sent and are still at the Orphans Home These three children had nothing on earth except a policy of insurance in the Woodmen of the World for $2,000 the assessments and dues on which were kept up in Mr Tryon’s poverty by a big souled man named HB Fitch On May 23 1902 Mr Tryon made his will in Memphis Tenn giving the guardianship of the persons and 84 Miss Born 1 GRIFFIN 47

Opinion of the court estate of his three children to Mr Patrick Boyle of that city and died five days thereafter on May 28 1902 with Ada only with him and Mr Boyle duly probated the will in Memphis on June 5 1902 on which day letters of guardianship were duly issued to him there The camp of the Woodmen of the World of which Mr Tryon was a member was at Tutwiler Miss and according to custom that order sent the check for the $2,000 there for delivery to and on receipt of Patrick Boyle guardian and while this check was in the hands of the proper officer of the Tutwiler camp Mr Griifin who had been informed of Mr Boyle’s appointment and had seen a copy of his letters of gzuardianship a month or more before and without any notice to Boyle of his purpose himself took out letters of guardianship of Algie and Elmer in Tallahatohie county Miss on August 27 1902 less than three months Code 1892 1509 from Tryon’s death Code 1892 2185 and on the next day filed his bill for attachment in chancery and the court decreed that he have two thirds of the check and Boyle onethird of it and Boyle appeals Very clearly from the evidence Tryon’s domicil was Mem phis Tenn when he made his will and he had a perfect right to name the guardian for his children and he did so His domicil being in Memphis that also was the domicil of his children in the view of the law and the guardian was under no legal obligation to file copies of his letters of guardianship etc in Mississippi before receiving a check payable to him If he were he did so after he had notice of Mr Griffin s bill which was his first knowledge that Griilin had taken out letters Grist v Forehand 36 Miss 70 Code 1892 1925 2211 It is sufficient for Boyle the foreign testamentary guardian in defense of a suit for a check payable to him to produce his appointment as testamentary guardian Boyle was entitled to the whole check and the custody of the children Reversed and decree here dismissing the bill 48 Born 11 Gmrrm Mch 1904