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In Re Guardianship of Smythe

DECEMBER 13, 1965.

IN THE MATTER OF THE GUARDIANSHIP OF MIKE SMYTHE AND SUSAN SMYTHE, MINORS. ALVA M. PHILLIPS AND RUTH PHILLIPS, PETITIONERS-APPELLEES,

v.

MIKE SMYTHE AND SUSAN SMYTHE, DEFENDANTS, BARBARA HAZELIP, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of White County; the Hon. CHARLES E. JONES, Judge, presiding. Judgment affirmed. MORAN, J.

This is an appeal from a judgment of the Circuit Court of White County appointing Alva Phillips guardian of the estates and persons of Mike and Susan Smythe.

On July 16, 1964, Alva M. Phillips and Ruth Phillips filed a petition in the Probate Division of the Circuit Court of White County, Illinois asking that Alva Phillips be appointed guardian of the estate and person of Mike Smythe, born May 13, 1958, and of his sister, Susan Smythe, born January 10, 1957. Foster L. Smythe, through his attorney, appeared in the Circuit Court of White County in opposition to the petition. The Circuit Court of White County entered the following order:

ORDER APPOINTING GUARDIAN

And now come Alva M. Phillips and Ruth Phillips, husband and wife, and file and present their petition for appointment of Guardian, and tender bond in the penal amount of $500.00. And the Court, from the verified petition and the evidence presented finds:

Mike Smythe and Susan Smythe are both minors; that said minors resided with their parents in Paducah, Kentucky; that both parents of said minors were killed in an auto accident in Illinois, and that said minors have been hospitalized at Crawford Memorial Hospital, at Robinson, Crawford County, Illinois as a result of injuries received in the accident; that the maternal grandparents of said minors reside at Enfield, White County, Illinois and also the paternal Grandmother; that paternal Grandfather of said minors is a resident of Indiana, at LaPorte, where he lives with his second wife, the step-grandmother of said minors. That the majority of the nearest kin of said minors are residents of White County, Illinois. That there may be a claim for wrongful death, as well as insurance benefits arising from the employment of the Father of said minors, all of which would be assets of the estates of said minors; and that there is likely a small amount of personal property coming to said minors from their deceased parents; and that a guardian of the estates and persons of said minors should be appointed, since each is an infant of tender years; and that the petitioners herein are fit and proper persons to assume the responsibilities of such guardianship.

It is therefore ordered that letters of Guardianship of the estates and persons of said minors, Mike Smythe and Susan Smythe, issue herein to Alva Phillips, a resident of White County, Illinois, whose bond herein has been approved; all in accordance with the prayer of the petition.

ENTER: July 16, 1964.

/s/ Charles E. Jones Judge

On July 21, 1964, Barbara Hazelip, paternal grandmother, Foster L. Smythe, paternal grandfather, and Natalie D. Willis, paternal aunt of said minors, filed a motion to vacate the foregoing order on the sole ground that the court was without jurisdiction to enter it. An affidavit and counteraffidavit were filed by the respective parties.

The facts disclosed that Foster A. Smythe and Aldean Phillips were married on April 21, 1956. Two children were born to their marriage, namely Mike Smythe (whose full, correct name is Dann Michael Smythe) born on May 13, 1958 and Susan Smythe who was born on January 10, 1957. Prior to her marriage to Foster Smythe, the said Aldean Phillips Smythe resided in White County, Illinois with her parents. Foster and Aldean first lived in Evansville, Indiana after their marriage, where their two children were born. They moved to Paducah, Kentucky about July of 1961 and resided there until June, 1964, when they moved to Ledbetter, Kentucky where they resided until the time of their deaths.

On July 12, 1964, Foster and Aldean and their two children were involved in a two-car collision in Crawford County, Illinois. Foster died the same day and Aldean died two days later. The children were hospitalized in Crawford County, Illinois. On July 16, 1964, Alva Phillips and Ruth Phillips filed a guardianship petition in the Circuit Court of White County, Illinois and Alva Phillips was appointed guardian of the person and the estate of both children on the same date, over the objection of Foster L. Smythe, who was represented by an attorney.

On July 16, 1964, Mike Smythe was removed from the Crawford County Memorial Hospital and taken to Indiana. The next day, Foster L. Smythe, with the full knowledge of the guardianship order of the Circuit Court of White County, removed Susan Smythe from the Crawford County Memorial Hospital against the advice of the attending physician and over the protest of the hospital administration, and took her to Indiana.

The nearest relatives of the minor children, Mike Smythe and Susan Smythe, are their grandparents: Alva Phillips and Ruth Phillips on the mother's side, Foster L Smythe and Barbara Smythe Hazelip on the father's side. All of the grandparents except Foster reside and are domiciled in White County, Illinois and did so live and reside at the time of the issuance of letters of guardianship in this cause. Both parents of said minors are buried at Enfield, White County, Illinois.

Appellants contend that the courts of this state have no jurisdiction of minors in guardianship proceedings other than that given them by statute and that the only statutes giving them jurisdiction are section 133 of the Illinois Probate Act, Smith Hurd Ill Ann Stats, chap 3, and section 2001 and section 2006 of the Illinois Family Court Act, Smith Hurd Ill Ann Stats, chap 23.

The Illinois Probate Act as amended in 1963, reads as follows:

On the filing of a verified petition by a reputable citizen of this State or on its own motion the Circuit Court may appoint a guardian for a minor wherever it appears necessary or convenient. If the minor is a resident of this State, the guardian of his estate and person shall be appointed by the Circuit Court of the county in which he resides. If the minor is not a resident of this State, the guardian of his estate shall be appointed by the Circuit Court of the county in which he owns ...


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