IN RE GUARDIANSHIP OF WINKLEMAN (GUARDIANSHIP)

Key holdings

Practitioner summary

Appeal under sec. 299 of the act to regulate the settlement of the estates of deceased persons (Comp. Laws 192, sec. 779) from a district court order of February 10, 1874 appointing respondent guardian of Mary, infant daughter of the intestate Winkleman (died February 5, 1874), made without notice to the relatives of the deceased or to the persons having the infant's care, and from the denial of appellant Chris Badenhoof's competing petition. Whitman, C. J. The appointment without notice was 'at least gravely irregular' and was reversed. Appellant's showing - distant kinship (he and his brother being the infant's only relatives in the United States), residence in the county where the infant and her property were, good character, capacity to manage the estate, sufficient sureties, and the intestate's letter of February 5, 1874 designating him guardian - was characterized as absolutely conclusive save under some extraordinary adverse showing; nevertheless, because the transcript did not purport to contain all the evidence, the court presumed undisclosed testimony supported the finding that appellant was 'not a proper person to have the custody of said minor or the management of her estate,' and affirmed the order denying his petition without prejudice to a renewal of his application. The attempted ratification of respondent's appointment was in any view absolutely null.

In plain language

H. Winkleman died intestate on February 5, 1874, leaving an infant daughter, Mary. Two days later the respondent petitioned to be appointed her guardian, and on February 10 the district court granted the petition - without any notice to the deceased's relatives or to the people who were caring for the child. The appellant, Chris Badenhoof, a distant relative living in the county and the person to whom Winkleman had written a deathbed letter asking him to become Mary's guardian, sell everything, and take the child to her grandparents in Germany, sought the guardianship himself, but the district court found him 'not a proper person' and denied his petition. The Nevada Supreme Court reversed the appointment of the respondent: granting the petition without notice to the relatives or the persons who had the child's care was at least gravely irregular. But it affirmed the denial of Badenhoof's own petition, because the transcript did not purport to contain all the evidence, and the court had to presume there was undisclosed testimony supporting the district court's finding against him - although the affirmance was expressly without prejudice to his renewing his application. The court added that the peculiar attempted ratification of the respondent's appointment was in any view absolutely null.