A different question

A special guardian for what child?

Reader Bridget Wanderer was baffled.

The court record she’d come across just didn’t make sense.

She knew that her grandmother Gladys was enumerated living with her father, stepmother and grandfather Forrest H. Mitchell in Manhattan, in New York City, in the 1900 U.S. census.¹

That grandfather — Bridget’s second great grandfather — died in 1901 and that’s what triggered the document that’s so puzzling.

It reads, in relevant part: “At a Surrogate’s Court held in and for the County of New York … on the 13th day of September…1901 … and the Surrogate having on his own motion appointed … (a) special guardian for the infant herein…”²

So, Bridget asks, since Gladys was the only child in the household, “Why was there any action at all taken on (her) behalf … when her father was living and had always been in contact with her and cared for her? Why would the child’s grandfather’s death have caused a court action?”

That’s a great question.

But in looking at the records, The Legal Genealogist wants to pose a different question altogether: who was the child for whom the special guardian was appointed?

The part about why there’d be a guardian for a minor heir is easy. This doesn’t have anything at all to do with caring for a child: until very modern times, the only time the legal system really cared about kids was when they were a public nuisance or a public charge, in which case they were locked up or bound out, or when they were entitled to get property, in which case the law stepped in to make sure the kids didn’t trade the property for a hunting dog and no adult stole it from them.

At common law, there were three essential types of guardians: the guardian by nature; the guardian for nurture; and the guardian in socage. The guardian by nature or guardian for nurture had the right to physical custody of a minor child. That was always the father or, if the father died without naming a guardian in his will, then the mother.³ The difference between the two was that the guardianship by nature lasted to age 21 and gave the guardian control over the child’s personal property. Guardianship for nurture lasted to age 14 and didn’t involve property at all.⁴ The guardian in socage was the one who had custody of a minor’s lands and person.⁵

In America, the guardian in socage gave way to the guardian by statute — the person “appointed for a child by the deed or last will of the father, and who has the custody both of his person and estate until the attainment of full age.”⁶ And if nobody was named by the father, the court stepped in with a guardian by appointment of the court, with the same authority.⁷

Notice that this type of guardianship came into play only when there was property involved. This didn’t have anything to do with Gladys living comfortably with her father and stepmother under their care. It had to do with the law — and under New York law at the time, a special guardian had to be appointed where a party, who is an infant, does not appear by his general guardian…⁸

And, in the Mitchell case, there was an estate involved. Gladys was even specifically named as an heir: she was to get a half-share in her grandfather’s books and pictures.

But… but… but… in the ordinary case, the courts didn’t bother with appointing special guardians when the property involved is small and the value low. And unless Forrest Mitchell had a veritable library or gallery of books and pictures, you have to wonder about the appointment of a special guardian for Gladys.

Especially if you comb through every word of the document and consider what else it might be saying.

You see, the bulk of Forrest’s estate — a life insurance policy, real estate in Washington State and more — was to be divided equally among his son Harvey F. Mitchell (Glady’s father), his daughter Ada (Mitchell) Boynton, and one part to “Celia Mitchell Muller’s heir.”⁹

That heir isn’t named, but remember that Gladys was only to get a half-share in her grandfather’s books and pictures. The other half was to go to Margaret Muller.¹⁰

And Celia M. Mitchell didn’t marry George Muller until 1894.¹¹

Which means that any Muller child who could be the heir of Celia would still have to be a minor — an infant in the language of the law — in 1901.

Which means that child was due to receive a chunk of cash and property that far exceeded anything Gladys might have been getting.

Which raises the bigger and maybe even better question here: who was the child for whom the special guardian was appointed?

Reading every word — every single solitary word — in every single solitary record — can give us clues to questions we didn’t even know to ask.

Here, chasing Glady’s cousin may well provide the answers.

Cite/link to this post: Judy G. Russell, “A different question,” The Legal Genealogist, posted 10 Jan 2019 (https://www.legalgenealogist.com/blog : accessed (date)).

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