Grant v. Whitaker, 5 N.C. 231, 1 Mur. 231 (1809)

July 1809 · Supreme Court of North Carolina

5 N.C. 231, 1 Mur. 231

Grant, an orphan, by his Guardian, v. Whitaker.

From Halifax

Tlie County Court is not bound to confirm the choice of a guardian made by an infant of fourteen years of age and upwards. Under the act of 1762, ch. 5, the Court may exercise a discretion in appointing a guardian, independent of any choice which the infant may make.

Whitaker was appointed guardian to the Plaintiff, by the County Court of Halifax •, and afterwards the Plaintiff being of the age of seventeen years, came into Court and made choice of Thomas Bustin as his guardian.&emdash; And it was referred to this Court, whether an infant of the age of fourteen years and upwards, may not choose a guardian $ and whether the County Court is bound, to confirm such choice, or exercise a discretion independent of any choice which such infant may make. *

Hah, Judge,

delivered the opinion of the Court:

It has been already decided in this Court, that however much a Court may be disposed to accommodate the feelings of an infant of fourteen years of age or upwards, in the appointment of a guardian, they are not bound absolutely by the choice of the infant; and that decision well accords with the true spirit of the act passed in the year 17"62, c. 5, as well as with the opinion of the Court in the case of Mills v. M’Alister, 1 Hay. Rep. 303. It would be much to be regretted, if a Court were bound by the choice of an infant in a case of so much importance as that of appointing a guardian. That choice might be brought about by artfui, designing persons, whose sole aim would he their own interest. The infant, owing to his tender years and inexperience, could not guard against these artifices, which a Court would be competent botli to see and prevent. We are therefore of opinion, that the Court are not bound to confirm the choice of the infant, but are at liberty to exercise a discretion, independent of any choice which the infant may make.