C. G. BRYANT, Executor of the Will of the Late YUDE HNE COOK, Appellant, v. T. N. ROLLAND, Guardian of ELIZA TOWHONE COOK, minor child of the Late YUDE HNE COOK, Appellee.

APPEAL FROM THE MONTHLY AND PROBATE COURT, MONTSERRADO COUNTY.

Argued October 23, 24, 1944. Decided November 17, 1944.

1. In the exposition of wills the first great rule to which all other rules must be subservient is that the intention of the testator expressed in his will shall prevail provided it is consistent with the rules of law.

2. To make the appointment of a guardian valid the essential jurisdictional facts must exist, to wit : the minority of the ward; his domicil, residence, or ownership of property within the territorial jurisdiction of the court ; and the lack of an existing guardian.

3. Testamentary guardians are appointed by the deed or by the last will of the father and supersede the claims of all other guardians.

On appeal from denial of application of appellant to Probate Court to set aside a decree of the Probate Court wherein appellee had been appointed guardian of Eliza Towhone Cook, judgment reversed.

H. Lafayette Harmon for appellant. Nete Sie Brownell for appellee.

MR. JUSTICE BARCLAY delivered the opinion of the Court.

This is a case brought before us by a bill of exceptions as a result of an application to set aside a decree of the Commissioner of Probate, Montserrado County, appointing T. N. Rolland, appellee, guardian of Eliza Towhone Cook, minor child of the late Yude Hne Cook who died on August 21, 1943. Said application was denied by the Commissioner of Probate.

The facts briefly stated are as follows : The late Yude Hne Cook lived near the Firestone plantations, Montserrado County, on his small rubber farm. During his lifetime he placed his minor daughter, Eliza Towhone Cook, and two other children with and in the care of appellee, residing at Monrovia, in order that his said daughter and the other two children might attend school. The children were with appellee and his wife at the time of the demise of Mr. Cook. Decedent left a last will and testament which when opened and read was found to nominate and appoint Mr. C. G. Bryant, now appellant, as executor, with certain definite instructions and requests. The interpretation of this clause in said will has resulted in this case and in this appeal. The will was regularly probated and registered without objections on October 25, 1943, after being first read in open court on September 21, 1943. On September 22, the day after the reading of the will and about a month after the death of the testator, appellee filed a petition in the Probate Court requesting that he be appointed legal guardian of the minor daughter of Mr. Cook, Eliza Towhone Cook, stating therein that he was already the guardian since the child was residing with him, having been placed thereat by her father about a year prior to his death. Appellee claimed therein that this had been done in consideration of the long standing friendly relations existing between decedent and himself.

On October 21, 1943 letters testamentary were granted by the court to appellant as executor of the estate of the late Mr. Cook. After a few months appellant made application to the Probate Court to set aside the appointment of Mr. T. N. Rolland as general guardian, contending that under the terms of the will it was evident that decedent, the testator, intended him to be the legal guardian of the said Eliza Towhone Cook. No particular interest is shown in the other two children since the petition of Mr. Rolland, the appellee, only referred to Eliza Towhone Cook.

The clause in the will which has brought about the contention reads as follows : “Mr. Charles Gude Bryant of Cavalla, Cape Palmas, Maryland County, now residing in Monrovia, Montserrado County, is the administrator of my property. He is to pay all debts I may leave behind and collect all debts which other people will be owing me. Mr. Bryant is to distribute the property into three parts ; two-thirds to Eliza and one-third between Yewude, and Geta Nyema. Eliza being a minor is to be cared for until she becomes of age, then Mr. Bryant will turn [the property] over to her. My desire is that if this little girl will have finished schooling and is become marriageable she is to marry a young man from Cavalla which is my original home. If Mr. Bryant still lives he must see that my desire is carried out.”

In this clause of the will above cited it appears to us that the testator intended to make appellant testamentary guardian. Testator placed upon Mr. Bryant the control and the management of his rubber farm with instructions as to the division thereof. In addition he placed upon appellant the special and unusual responsibility, if appellant were still alive, of seeing that his minor daughter married a young man from Cavalla, testator’s home, when she had reached marriageable age after completing her schooling. These responsibilities together with the other duties and responsibilities entrusted to Mr. Bryant were intended to establish such an intimate parental relationship as would enable appellant, in the conception of deceased, to be able to influence decedent’s daughter in such a delicate matter as marriage. Thus the nature of all the responsibilities entrusted to appellant dispels any doubt as to whether the testator intended to make appellant the testamentary guardian, since without such control, authority, direction, and advice it would be impossible for him to carry out the desires of testator as mentioned in the said will with reference to his young daughter.

The first great rule in the exposition of wills to which all other rules must be subservient is that the intention of the testator expressed in his will shall prevail, provided it is consistent with the rules of law.

A rule of law may overrule the intention of a testator in four instances :

(1) Where the devise would make a perpetuity;
(2) Where it would put the freehold in abeyance;
(3) Where chattels are limited as inheritances; and
(4) Where a fee is limited on a fee. None of these instances appears in this case.

It appears to us strange that neither appellee nor the court sua sponte informed or notified appellant, who was then known to be the executor designated in the will of testator, of the filing of the petition of Mr. Rolland requesting appointment as legal guardian. This should have been done in order that appellant might appear and file objections if he had any. This omission is confirmed by appellee’s brief wherein he states, “[B]ut the executor did not know that the Probate Court had made appellee legal guardian of the minor child Eliza Towhone.” Such omission on the part of the appellee and of the court was error and therefore fatal to appellee.

“To make the appointment of a guardian valid the essential jurisdictional facts must exist, to wit, the minority of the ward, and his domicil, residence or ownership of property, within the territorial jurisdiction of the court. There must also be no existing guardian; and if it appears that the ward then had a lawful guardian with authority over the same field for which the new one is appointed, the new appointment is void. Such notice of the hearing on the application for the appointment of a guardian as is required by law must be given, and lack thereof is fatal to the jurisdiction. Even if the notice is only required to be such as the judge shall direct, there must be some notice ; and if the record states that an appointment was made ‘on reading and filing the petition,’ it is void. . . .” 2 R.C.L. Guardian and Ward § 15, at 1114. (1916).

In addition to the lack of notice to appellant, there is another reason for declaring the appointment of appellee void. The testator had in his will nominated and appointed C. G. Bryant, appellant, guardian, thereby making him the testamentary guardian. Under the law just cited and quoted, “[I]f it appears that the ward then had a lawful guardian with authority over the same field for which the one is appointed, the new appointment is void. . . .” Ibid.

There seems to be no doubt that the will was read in open court and that appellee had knowledge of its contents prior to his application for appointment as guardian. Nevertheless with that knowledge appellee prayed for and accepted an appointment as guardian. The relevant portion of the court’s decree of appointment is as follows :

“Ordered and decreed that T. N. Rolland be and is hereby appointed general guardian of the said Eliza Towhone including her person and property upon him taking an oath to well and faithfully and honestly discharge the duties of such guardian, that he will obey all legal directions of this Court with respect to the trust hereby imposed upon him. . . .”

It is clear that such an appointment conflicts with the testamentary appointment of Mr. Bryant since it gives appellee authority over the same field, i.e., the person and property of Eliza Towhone Cook.

“Testamentary guardians are appointed by the deed or last will of the father . . . . and they supersede the claims of all other guardians, and have control of the person and the real and personal estate of the child til he arrives at full age.” 2 Bouvier, Law Dictionary Guardian and Ward 1392-93 (Rawle’s 3d rev. 1914).

Since it is clear to us that the testator intended in his will to make appellant testamentary guardian of his minor daughter, Eliza Towhone Cook, and that the appointment of T. N. Rolland, the appellee, under existing circumstances is illegal and void, we have no hesitancy in reversing the ruling and decree of the Commissioner of Probate, thereby revoking and making null and void the appointment of T. N. Rolland as general guardian of the said child and ordering the testamentary designation of C. G. Bryant as guardian of the infant child, Eliza Towhone Cook, to remain in full force and virtue, with costs against the appellee ; and it is hereby so ordered.

Reversed.